Reply
 
Thread Tools Display Modes
  #1  
Old 05-21-2018, 10:13 AM
Snowboarder Bo Snowboarder Bo is offline
Member
 
Join Date: May 2005
Location: Las Vegas
Posts: 22,389
SCOTUS just restored us to Yellow Dog contract days!

I'll be glad to be shown otherwise, but I'm pretty sure the recent SCOTUS decision just invalidated the Norris-LaGuardia Act and restored us to the 1920s norm of allowing employers to dictate when people can and cannot exercise their free association rights.

This is not a good decision for America.

Quote:
The justices ruled 5-4 Monday, with the court’s conservative members in the majority, that businesses can force employees to individually use arbitration, not the courts, to resolve disputes.

The outcome does not affect people represented by labor unions, but an estimated 25 million employees work under contracts that prohibit collective action by employees who want to raise claims about some aspect of their employment.
The new guy wrote the majority decision:
Quote:
The court’s task was to reconcile federal laws that seemed to point in different directions. On the one hand, New Deal labor laws explicitly gave workers the right to band together. On the other, the older Federal Arbitration Act encourages the use of arbitration, instead of the courts.

Justice Neil Gorsuch, writing for the majority, said the contracts are valid under the arbitration law. “As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear,” Gorsuch wrote.
RBG wrote for the dissent, natch.
Quote:
Justice Ruth Bader called the decision “egregiously wrong” and likely to lead to “huge underenforcement of federal and state stautes designed to advance the well-being of vulnerable workers.” Ginsburg said that the individual complaints can be very small in dollar terms, “scarcely of a size warranting the expense of seeking redress alone.” Ginsburg read a summary of her dissent aloud.
  #2  
Old 05-21-2018, 10:25 AM
Shodan Shodan is online now
Charter Member
 
Join Date: Jul 2000
Location: Milky Way Galaxy
Posts: 36,656
Seems like Gorsuch is arguing the law, and Ginsberg is arguing what the policy should be. Since it isn't the job of the Supreme Court to change laws or set policy, Gorsuch is right and Ginsberg is wrong.

But we could have guessed that.

Regards,
Shodan
  #3  
Old 05-21-2018, 10:34 AM
Morgenstern Morgenstern is offline
Guest
 
Join Date: Jun 2007
Location: Southern California
Posts: 11,866
Quote:
Originally Posted by Shodan View Post
... Since it isn't the job of the Supreme Court to change laws or set policy,...

Regards,
Shodan
Yet many of the cases SCOTUS rules on affirms, modifies or nullifies a law or statute. So it really is their job.
  #4  
Old 05-21-2018, 10:37 AM
Czarcasm Czarcasm is online now
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 55,975
What governmental department oversees whether such arbitration follows regs, and who is currently heading that department?

Last edited by Czarcasm; 05-21-2018 at 10:37 AM.
  #5  
Old 05-21-2018, 10:54 AM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 76,912
Quote:
Originally Posted by Shodan View Post
Seems like Gorsuch is arguing the law, and Ginsberg is arguing what the policy should be. Since it isn't the job of the Supreme Court to change laws or set policy, Gorsuch is right and Ginsberg is wrong.
You've got the principle right but the outcome reversed. It was Gorsuch and his conservative peers who just rewrote a bunch of laws they don't like. Ginsberg was arguing that the laws should have remained intact.

This was pure judicial activism; conservatives on the Supreme Court writing laws.
  #6  
Old 05-21-2018, 10:56 AM
Snowboarder Bo Snowboarder Bo is offline
Member
 
Join Date: May 2005
Location: Las Vegas
Posts: 22,389
Quote:
Originally Posted by Shodan View Post
Seems like Gorsuch is arguing the law, and Ginsberg is arguing what the policy should be. Since it isn't the job of the Supreme Court to change laws or set policy, Gorsuch is right and Ginsberg is wrong.

But we could have guessed that.

Regards,
Shodan
Well, you could have maybe, since it seems that you read the part of what Gorsuch wrote that I quoted and just said "well, it must be true".

Last edited by Snowboarder Bo; 05-21-2018 at 10:57 AM.
  #7  
Old 05-21-2018, 10:59 AM
Snowboarder Bo Snowboarder Bo is offline
Member
 
Join Date: May 2005
Location: Las Vegas
Posts: 22,389
Quote:
Originally Posted by Little Nemo View Post
You've got the principle right but the outcome reversed. It was Gorsuch and his conservative peers who just rewrote a bunch of laws they don't like. Ginsberg was arguing that the laws should have remained intact.

This was pure judicial activism; conservatives on the Supreme Court writing laws.
That's my immediate perception, too, Little Nemo: they just erased a good portion of Norris-LaGuardia.
  #8  
Old 05-21-2018, 10:59 AM
Shodan Shodan is online now
Charter Member
 
Join Date: Jul 2000
Location: Milky Way Galaxy
Posts: 36,656
Quote:
Originally Posted by Little Nemo View Post
You've got the principle right but the outcome reversed. It was Gorsuch and his conservative peers who just rewrote a bunch of laws they don't like. Ginsberg was arguing that the laws should have remained intact.
I have the outcome correct. Ginsberg made no mention of retaining laws, she argued (in the quoted text) only policy grounds. Gorsuch said
Quote:
Justice Neil Gorsuch, writing for the majority, said the contracts are valid under the arbitration law. “As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear,” Gorsuch wrote.
Regards,
Shodan
  #9  
Old 05-21-2018, 11:19 AM
dropzone dropzone is offline
Member
 
Join Date: May 2000
Location: Cloud Cuckoo Land
Posts: 28,692
Quote:
Originally Posted by Little Nemo View Post
This was pure judicial activism; conservatives on the Supreme Court writing laws.
No, no, no! Only liberal judges can practice judicial activism! Haven't you been paying attention the last thirty years?
  #10  
Old 05-21-2018, 11:34 AM
puddleglum puddleglum is offline
Guest
 
Join Date: Oct 2000
Location: a van down by the river
Posts: 5,765
"Yellow dog" contracts prevented an employee from joining a union. The court decision specifically says that it does not address that at all. It merely returns the interpretation of the Arbitration Act to the interpretation that prevailed from 1926-2012. It is an obviously correct opinion.
  #11  
Old 05-21-2018, 11:47 AM
John Mace John Mace is online now
Guest
 
Join Date: Dec 2002
Location: South Bay
Posts: 83,467
Call me crazy, but I can't decide what is going on from that brief article and I'd have to see the actual decision. Does anyone have a link to the text of the decision? My quick google search didn't find it.

Last edited by John Mace; 05-21-2018 at 11:47 AM.
  #12  
Old 05-21-2018, 11:53 AM
Bone Bone is offline
Arbitrary and Capricious
Moderator
 
Join Date: Jul 2003
Posts: 9,034
Here's the opinion.
  #13  
Old 05-21-2018, 11:54 AM
Shodan Shodan is online now
Charter Member
 
Join Date: Jul 2000
Location: Milky Way Galaxy
Posts: 36,656
Quote:
Originally Posted by John Mace View Post
Call me crazy, but I can't decide what is going on from that brief article and I'd have to see the actual decision. Does anyone have a link to the text of the decision? My quick google search didn't find it.
I think this is it. PDF.

Regards,
Shodan
  #14  
Old 05-21-2018, 12:10 PM
John Mace John Mace is online now
Guest
 
Join Date: Dec 2002
Location: South Bay
Posts: 83,467
Great. Thanks.

As usual, it's pretty dense. My 5 minute perusal didn't help much. Might need one of our resident lawyers to help decode the reasoning.
  #15  
Old 05-21-2018, 12:23 PM
doorhinge doorhinge is offline
Guest
 
Join Date: May 2012
Posts: 8,940
"The outcome does NOT affect people represented by labor unions, but an estimated 25 million employees work under contracts that prohibit collective action by employees who want to raise claims about some aspect of their employment."


....."The court’s task was to RECONCILE (existing) federal laws that seemed to point in different directions. On the one hand, New Deal labor laws explicitly gave workers the right to band together. On the other, the older Federal Arbitration Act encourages the use of arbitration, instead of the courts."


....."Justice Neil Gorsuch, writing for the majority, said THE CONTRACTS ARE VALID under the (existing) arbitration law. “As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear,” Gorsuch wrote."


....."Lower courts had split over the issue. The high court considered three cases — two in which appeals courts ruled that such agreements can’t be enforced and a third in which the appeals court said they are valid."


If Congress wishes to change existing laws they are free to do so. Based on existing laws, lower courts issued split decisions over this issue. That resulted in the Supremes accepting these cases and issuing their own opinions. Contracts were written, offered, and accepted. The parties originally accepted the fact that business disputes will be settled in arbitration and not the courts. It now appears that at least three employees objected to the wording of the contracts and took the issue to court. And they lost.

Ditzy ol' Ginsburg suggests that federal and state stautes may now, possibly, be under-enforced at some time in the future. Maybe. Unless, of course, they aren't. It seems to me that Ginsburg wishes to rewrite the contracts for 25 million employees.
  #16  
Old 05-21-2018, 12:26 PM
Bone Bone is offline
Arbitrary and Capricious
Moderator
 
Join Date: Jul 2003
Posts: 9,034
I'm not a lawyer, but my high level understanding is that the petitioners contended that the FAA and NRLB were in conflict. The NRLB was passed after the FAA, so the employees that were party to the suit argued the NRLB superseded the FAA, and they shouldn't be required to go into individual arbitration since that violated section 7 of the NRLB, even though they agreed to arbitration as a condition of employment.

The majority opinion held that there is no conflict between the two acts and both are operative. Folks can unionize and collectively bargain, and employers could require arbitration as a condition of employment:
Quote:
Seeking to demonstrate an irreconcilable statutory conflict even in light of these demanding standards, the employees point to Section 7 of the NLRA. That provision guarantees workers
“the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U. S. C. §157.
From this language, the employees ask us to infer a clear and manifest congressional command to displace the Arbitration Act and outlaw agreements like theirs.

But that much inference is more than this Court may make. Section 7 focuses on the right to organize unions and bargain collectively. It may permit unions to bargain to prohibit arbitration. Cf. 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 256–260 (2009). But it does not express approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand.

Neither should any of this come as a surprise. The notion that Section 7 confers a right to class or collective actions seems pretty unlikely when you recall that procedures like that were hardly known when the NLRA was adopted in 1935. Federal Rule of Civil Procedure 23 didn’t create the modern class action until 1966; class arbitration didn’t emerge until later still; and even the Fair Labor Standards Act’s collective action provision postdated Section 7 by years. See Rule 23–Class Actions, 28 U. S. C. App., p. 1258 (1964 ed., Supp. II); 52Stat. 1069; Concepcion, 563 U. S., at 349; see also Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979) (noting that the “usual rule” then was litigation “conducted by and on behalf of individual named parties only”). And while some forms of group litigation existed even in 1935, see 823 F. 3d, at 1154, Section 7’s failure to mention them only reinforces that the statute doesn’t speak to such procedures.
The conflict in this matter seems to hinge on a narrow or expansive reading of the terms in the NRLB, of which there has been conflict even in the last 10 years withing the NRLB positions. I think SCOTUSBlog summaries are superior to most other summaries. Here is theirs for this case.
  #17  
Old 05-21-2018, 12:46 PM
wolfpup wolfpup is offline
Guest
 
Join Date: Jan 2014
Posts: 8,546
Quote:
Originally Posted by Shodan View Post
Seems like Gorsuch is arguing the law, and Ginsberg is arguing what the policy should be. Since it isn't the job of the Supreme Court to change laws or set policy, Gorsuch is right and Ginsberg is wrong.

But we could have guessed that.
Let's assume for a moment that your interpretation is correct in this case. I assume "we could have guessed that" would be a reference to how the court's conservative faction always exercises commendable judicial restraint and respect for the rule of law.

If only. The reality is that so far the Roberts court has been one of the most activist in memory, not the least bit hesitant to reshape policy in order to mold society in the conservative image, and in the process overturning with reckless abandon any laws that get in the way. In Citizens United Roberts cleverly conspired to have the case re-argued in order to greatly broaden its scope, and in the process not only overturned parts of important campaign finance legislation that had bipartisan support, but overruled two previous Supreme Court rulings that had supported it.

It was some of the most brazen activism that had ever transpired in the court, although the Heller ruling two years earlier was equally brazen. The Supreme Court had managed for a century to avoid being drawn into making interpretations of the Second Amendment, but the Roberts court had no such qualms. It seems that Scalia had a brilliant insight that had escaped all previous observers, which is that the introductory words to the Amendment, "A well regulated militia being necessary to the security of a free state ..." could be ignored, because the Second Amendment had nothing whatsoever to do with militias or a free state, and those words were just decoration. This was of course ludicrous, but the NRA loved it, so it was all good.

The point I'm making here is that whenever the conservatives on the Roberts court suddenly develop a deep respect for the rule of law, or constitutional literalism, or a great reluctance to become involved in "policy", look carefully and you'll see a conservative policy being advanced. It's only when progressive laws are being challenged that they'll run over them like a bulldozer.
  #18  
Old 05-21-2018, 01:01 PM
Lumpy Lumpy is offline
Charter Member
 
Join Date: Aug 1999
Location: Minneapolis, Minnesota US
Posts: 15,932
It seems to me that the larger issue ("policy" seems an inadequate description) is the conflict between the ideals of democracy and the reality of modern capitalism/ industrialism. The left's ideological stance since the 1930's has been that the interests of the people need protection against what would otherwise be the overwhelming power of plutocracy; that strict laissez faire would lead to a modern version of serfdom. Thus you have not only labor laws but also things like campaign donation laws. This is I think one of the major unresolved issues of our society.
  #19  
Old 05-21-2018, 01:17 PM
doorhinge doorhinge is offline
Guest
 
Join Date: May 2012
Posts: 8,940
Quote:
Originally Posted by wolfpup View Post
It was some of the most brazen activism that had ever transpired in the court, although the Heller ruling two years earlier was equally brazen. The Supreme Court had managed for a century to avoid being drawn into making interpretations of the Second Amendment, but the Roberts court had no such qualms. It seems that Scalia had a brilliant insight that had escaped all previous observers, which is that the introductory words to the Amendment, "A well regulated militia being necessary to the security of a free state ..." could be ignored, because the Second Amendment had nothing whatsoever to do with militias or a free state, and those words were just decoration.
(post shortened)

The entire U.S. Bill of Rights was created, written, debated, passed, and ratified to protect certain unalienable rights of individuals (aka THE PEOPLE). The entire BOR protects an individual's right from the power of the government.

The founding fathers did not create a list of nine rights for THE PEOPLE, and one right for the government or any militia.
  #20  
Old 05-21-2018, 01:37 PM
Bone Bone is offline
Arbitrary and Capricious
Moderator
 
Join Date: Jul 2003
Posts: 9,034
Moderating

Folks, this thread is about EPIC SYSTEMS CORP. v. LEWIS. Please drop potential hijacks that are not related to this particular case.

[/moderating]
  #21  
Old 05-21-2018, 02:34 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 76,912
Quote:
Originally Posted by Shodan View Post
I have the outcome correct.
No, you do not.

Congress enacted the Federal Arbitration Act in 1925. It said mandatory arbitration was legal.

Congress enacted the National Labor Relations Act in 1935. It said mandatory arbitration clauses were not legal.

Gorsuch was appointed to the Supreme Court in 2017. He just wrote a decision that invalidated the National Labor Relations Act (aka the Wagner Act) in favor of Federal Arbitration Act, despite the fact that the National Labor Relations Act was enacted ten years afterwards.

That's a frightening precedent. Congress clearly enacted the Wagner Act. The current decision isn't claiming it violated the Constitution. This is the Supreme Court compared a new law to an old law and deciding it liked the old law better so it's overturning the new law.

And I'm using the term new law in relative terms. As I noted, the law that the court is overturning was enacted in 1935. That means the court could now use the same principle to overturn any law written in the last hundred years. What's next on the agenda?
  #22  
Old 05-21-2018, 02:43 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,577
Quote:
Originally Posted by Little Nemo View Post
Congress enacted the National Labor Relations Act in 1935. It said mandatory arbitration clauses were not legal.
It really doesn't.

Can you quote the particular portion of the NLRA that says this?
__________________
It was always the Doctor and Sarah.
  #23  
Old 05-21-2018, 04:39 PM
Whack-a-Mole Whack-a-Mole is offline
Member
 
Join Date: Apr 2000
Location: Chicago, IL USA
Posts: 19,707
Quote:
Originally Posted by Bricker View Post
It really doesn't.

Can you quote the particular portion of the NLRA that says this?
I do not think it makes arbitration illegal. However, it does say this (highlighting mine):

Quote:
RIGHTS OF EMPLOYEES

Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

SOURCE: https://www.nlrb.gov/resources/natio...tions-act-nlra
That, to me, would seem to allow them to engage in a class action lawsuit against their employer.
  #24  
Old 05-21-2018, 05:15 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 76,912
Quote:
Originally Posted by Whack-a-Mole View Post
That, to me, would seem to allow them to engage in a class action lawsuit against their employer.
The law goes on to say "It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title."

If you require employees to accept a mandatory arbitration clause you are interfering with, restraining, and coercing those employees from pursuing other means of settling disputes.
  #25  
Old 05-21-2018, 05:20 PM
DSYoungEsq DSYoungEsq is offline
Member
 
Join Date: Jul 1999
Location: Indian Land, S Carolina
Posts: 13,165
Quote:
Originally Posted by Whack-a-Mole View Post
I do not think it makes arbitration illegal. However, it does say this (highlighting mine):



That, to me, would seem to allow them to engage in a class action lawsuit against their employer.
The trouble is that, to give the law this interpretation would be to assert that it overturned the specific contrary assertion of another law. The majority expressly addresses this in their opinion, holding that the basic principle of reconciliation of seemingly conflicting laws is to find that one overturns the other only when a more specific indication of such Congressional intent exits. In other words, you can't kill a prior provision simply by passing a subsequent provision that doesn't specifically say so, and only gets read to mean that by applying a "liberal" interpretation of the subsequent provision.

Hate to say it, but I'm firmly with the majority here, even if I dislike the outcome (and I do).
  #26  
Old 05-21-2018, 05:21 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 76,912
Quote:
Originally Posted by Whack-a-Mole View Post
I do not think it makes arbitration illegal.
I agree it doesn't make all arbitration illegal. But this is an issue about mandatory arbitration.
  #27  
Old 05-21-2018, 05:31 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 76,912
Quote:
Originally Posted by DSYoungEsq View Post
The trouble is that, to give the law this interpretation would be to assert that it overturned the specific contrary assertion of another law. The majority expressly addresses this in their opinion, holding that the basic principle of reconciliation of seemingly conflicting laws is to find that one overturns the other only when a more specific indication of such Congressional intent exits. In other words, you can't kill a prior provision simply by passing a subsequent provision that doesn't specifically say so, and only gets read to mean that by applying a "liberal" interpretation of the subsequent provision.

Hate to say it, but I'm firmly with the majority here, even if I dislike the outcome (and I do).
Let's apply that principle. The Eighth Amendment prohibits "cruel and unusual punishments". Does that law therefore prohibit drawing and quartering? Apparently not. Drawing and quartering was an accepted historical legal punishment. And the Eighth Amendment didn't explicitly include it in its blanket prohibition. According to your argument, if Congress had meant to ban drawing and quartering as a cruel and unusual punishment, it would have specifically said so.

I disagree with this interpretation. When a law is enacted which bans a broad category of actions as illegal, it includes all of those actions - even if it doesn't list them all individually.
  #28  
Old 05-21-2018, 05:33 PM
John Mace John Mace is online now
Guest
 
Join Date: Dec 2002
Location: South Bay
Posts: 83,467
Quote:
Originally Posted by Little Nemo View Post
I agree it doesn't make all arbitration illegal. But this is an issue about mandatory arbitration.
No, it's not. It's about arbitration when it's part of the employment contract. If it's not part of the contract, it's not mandatory.
  #29  
Old 05-21-2018, 05:40 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 76,912
Quote:
Originally Posted by John Mace View Post
No, it's not. It's about arbitration when it's part of the employment contract. If it's not part of the contract, it's not mandatory.
If the contract required employees to have sex with the boss, would that be legal? Obviously not. A contract cannot include requirements which are illegal.

The Wagner Act says employers cannot restrain employees from exercising their rights. A contract which mandates arbitration is clearly restraining employees from exercising other means to settle disputes. So that contract is in violation of the Wagner Act.
  #30  
Old 05-21-2018, 05:57 PM
AK84 AK84 is online now
Guest
 
Join Date: Apr 2008
Posts: 14,615
*There were two laws. Which governed two related but distinct spheres.

*Then about 6 years ago a statutory body, not even a Court, held that some provisions of one law were subject to another.

*The SCOTUS has ruled, actually no it's not. If you want it to be then Congress has to make such a change not a statutory body.

Absolutely and wholly unexceptional finding. If anything it's RBG who is supporting the conservative position, ie giving deference to Gov bodies, and Gorsuch is adopting the "liberal" position of refusing such deference.

I think the split here is based on age and background, not political position. Ginsberg is from a generation where once a Government body had showed something to be in their jurisdiction, that was it, Courts would uphold it. Gorsuch, who is younger, adopts the more modern approach of critically analysing acts done against the framework authorising it.

Threads like this remind me why it takes years of study to become a lawyer.
  #31  
Old 05-21-2018, 06:57 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,577
Quote:
Originally Posted by Whack-a-Mole View Post
I do not think it makes arbitration illegal. However, it does say this (highlighting mine):



That, to me, would seem to allow them to engage in a class action lawsuit against their employer.
There's a rule of statutory construction which disfavors repeals by implication. In other words, the courts are to presume that Congress does not intend to reverse the effects of a prior law unless it does so explictly. As Justice Stevens wrote back in 1988:

Quote:
The presumption disfavoring implied repeals has been a part of this Court's jurisprudence at least since 1842. See Wood v. United States, 16 Pet. 342, 362-363 (1842) (repeal to be implied only if there is a "positive repugnancy" between the old law and the new); Daviess v. Fairbairn, 3 How. 636, 648 (1845) ("Virtual repeals are not favoured by courts"); United States v. Tynen, 11 Wall. 88, 92 (1871) ("[I]t is a familiar doctrine that repeals by implication are not favored"). It is a firmly entrenched part of the legal landscape against which Congress works. We can presume with certainty that Congress is aware of this longstanding presumption and that Congress relies on it in drafting legislation.
(Quoting US v Fausto, 484 U.S. 439, 463 fn. 9 (1988) (Stevens, J. in dissent).

So my first question to you is: when you say, "That, to me, would seem to allow them to engage in a class action lawsuit against their employer," were you aware of and applying that canon?
__________________
It was always the Doctor and Sarah.
  #32  
Old 05-21-2018, 07:00 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,577
Quote:
Originally Posted by Little Nemo View Post
If the contract required employees to have sex with the boss, would that be legal? Obviously not. A contract cannot include requirements which are illegal.

The Wagner Act says employers cannot restrain employees from exercising their rights. A contract which mandates arbitration is clearly restraining employees from exercising other means to settle disputes. So that contract is in violation of the Wagner Act.
No.

Because the Wagner Act did not expressly repeal earlier law, and doesn't directly contradict it. The rules of statutory construction say that the correct approach is to assume Congress meant both provisions to have effect, and ask how that could be harmonized in one result.

Do you not agree that this is the applicable rule of statutory construction? If not, why not?
__________________
It was always the Doctor and Sarah.
  #33  
Old 05-21-2018, 07:44 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 76,912
Quote:
Originally Posted by AK84 View Post
Absolutely and wholly unexceptional finding. If anything it's RBG who is supporting the conservative position, ie giving deference to Gov bodies, and Gorsuch is adopting the "liberal" position of refusing such deference.

I think the split here is based on age and background, not political position. Ginsberg is from a generation where once a Government body had showed something to be in their jurisdiction, that was it, Courts would uphold it. Gorsuch, who is younger, adopts the more modern approach of critically analysing acts done against the framework authorising it.
I've think we've given up on the idea that the Supreme Court is a non-partisan body ruling impartially on issues of law. It's become just another political body like Congress or the Presidency. The goal now is to appoint a majority of your party's justices to the court so they can legislate for the party.

If judges weren't partisan representatives of the party that appoints them, then the Republicans wouldn't have cared who appointed Scalia's replacement. If judges just issued impartial non-political decisions then any judge could have filled the seat. But the reality is the Republicans wanted a Republican judge so they could count on him issuing Republican decisions. And Gorsuch is delivering (just as Scalia did).

So this decision had nothing to do with legal philosophy. Gorsuch issued a decision that was favorable to Republican interests, no differently than what Trump or McConnell or Ryan do. Any legal theories mentioned in the decision is just window dressing.
  #34  
Old 05-21-2018, 07:46 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 76,912
Quote:
Originally Posted by Bricker View Post
No.

Because the Wagner Act did not expressly repeal earlier law, and doesn't directly contradict it. The rules of statutory construction say that the correct approach is to assume Congress meant both provisions to have effect, and ask how that could be harmonized in one result.

Do you not agree that this is the applicable rule of statutory construction? If not, why not?
I already addressed this issue.
  #35  
Old 05-21-2018, 07:51 PM
Jon in PDX Jon in PDX is offline
Guest
 
Join Date: Mar 2018
Posts: 23
Quote:
Originally Posted by Snowboarder Bo View Post
I'll be glad to be shown otherwise, but I'm pretty sure the recent SCOTUS decision just ... restored us to the 1920s norm of allowing employers to dictate when people can and cannot exercise their free association rights.
I don't think it is helpful to overstate things. The freedom to unionize and collectively bargain was not addressed in Epic, at least not that I saw after a quick skim. Nobody is disputing the right of these workers to unionize and try to replace existing labor contracts with ones that allow class actions or other forms of collective redress. Rather, the case was about whether workers can invalidate some terms of existing contracts in order to enforce other terms of the same contracts because they are using a collective method (class actions).


As a matter of policy, my first impression was that it seemed clear that collective bargaining ought to cover this sort of employment issue. I think workers and consumers have too little bargaining power when it comes to things like this. On reflection, though, I do not think that's necessarily a good idea -- I think I agree with the outcome of this case despite my liberal bias.

In my state (Oregon), labor laws provide a penalty against unpaid wages. (If I recall, shorting an employee even a single cent, and refusing their written request to pay what is owed, essentially entitles the worker to 30 days' wages.) That's the proper remedy for this situation. There's an existing, straightforward framework and it provides a deterrent effect. Perhaps I'm out of touch with this aspect of the workforce, but I don't see how opening up the possibility for class actions here would help things.

Moreover, an essential function of contracts is to help all involved parties plan for future events. Allowing former workers to unionize and institute a class action that invalidates a common provision of many (and likely disparate) contracts seems like a recipe for uncertainty, which hurts everyone.


Czarcasm -- I think the agency you're looking for is the National Labor Relations Board.
  #36  
Old 05-21-2018, 07:57 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,577
Quote:
Originally Posted by Little Nemo View Post
I already addressed this issue.
I'm sorry, but it's not clear to me in which post you did so. A link, mayhap?
__________________
It was always the Doctor and Sarah.
  #37  
Old 05-21-2018, 08:01 PM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 55,577
Quote:
Originally Posted by Little Nemo View Post
If judges weren't partisan representatives of the party that appoints them, then the Republicans wouldn't have cared who appointed Scalia's replacement.
If judges weren't partisan, then the Democrats wouldn't have cared who Lewis Powells' replacement was, as long as he was legally qualified.

But a former Solicitor General of the United States was rejected, thirty years ago.
__________________
It was always the Doctor and Sarah.
  #38  
Old 05-21-2018, 08:37 PM
Whack-a-Mole Whack-a-Mole is offline
Member
 
Join Date: Apr 2000
Location: Chicago, IL USA
Posts: 19,707
Quote:
Originally Posted by Bricker View Post
So my first question to you is: when you say, "That, to me, would seem to allow them to engage in a class action lawsuit against their employer," were you aware of and applying that canon?
I was not aware of it but it certainly makes sense as a policy.

That said I disagree with Gorsuch.

The NLRA clearly intends to allow employees to band together for their "mutual aid and protection" and I do not think congress ever thought for a second this impinged on the FAA. Indeed it has taken 80+ years to get here so seems a novel idea to use the FAA to undo the NLRA.

All a company needs to do to rid itself of a class action from its employees is include a clause that employees can't negotiate in a hiring contract. Seems rather ridiculous to be able to thwart congress so simply.

Last edited by Whack-a-Mole; 05-21-2018 at 08:40 PM.
  #39  
Old 05-21-2018, 08:48 PM
Whack-a-Mole Whack-a-Mole is offline
Member
 
Join Date: Apr 2000
Location: Chicago, IL USA
Posts: 19,707
Missed edit window:

In the decision Gorsuch writes:

"It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another."

I am missing the "harmonious whole" Gorsuch made this as he claims is his goal. Seems he gutted the NLRA instead.

Last edited by Whack-a-Mole; 05-21-2018 at 08:49 PM.
  #40  
Old 05-21-2018, 10:06 PM
John Mace John Mace is online now
Guest
 
Join Date: Dec 2002
Location: South Bay
Posts: 83,467
Quote:
Originally Posted by Little Nemo View Post
If the contract required employees to have sex with the boss, would that be legal? Obviously not. A contract cannot include requirements which are illegal.

The Wagner Act says employers cannot restrain employees from exercising their rights. A contract which mandates arbitration is clearly restraining employees from exercising other means to settle disputes. So that contract is in violation of the Wagner Act.
There exists a statute, the Arbitration Act, which is the other statute in this case that you are ignoring. There does not exist a "Have Sex with Your Boss Act", so we can file your post under Bad Analogies.
  #41  
Old 05-22-2018, 01:02 AM
Chisquirrel Chisquirrel is offline
Member
 
Join Date: Mar 2016
Posts: 1,822
Quote:
Originally Posted by Bricker View Post
If judges weren't partisan, then the Democrats wouldn't have cared who Lewis Powells' replacement was, as long as he was legally qualified.

But a former Solicitor General of the United States was rejected, thirty years ago.
BORKED in 37!

Lest we rehash the entire debacle, Bork was voted against by more than Democrats.
  #42  
Old 05-22-2018, 01:32 AM
AK84 AK84 is online now
Guest
 
Join Date: Apr 2008
Posts: 14,615
Such a clause would fail and probably void the whole contract. Fail on basic principles of contract long before any Arbitration issues arose. Probably attract criminal liability as well.
ETA: In response to the "sex with boss" clause mentioned above.

Last edited by AK84; 05-22-2018 at 01:33 AM.
  #43  
Old 05-22-2018, 04:09 AM
DavidwithanR DavidwithanR is offline
Suspended
 
Join Date: Feb 2018
Posts: 1,893
Quote:
Originally Posted by Lumpy View Post
It seems to me that the larger issue ("policy" seems an inadequate description) is the conflict between the ideals of democracy and the reality of modern capitalism/ industrialism. The left's ideological stance since the 1930's has been that the interests of the people need protection against what would otherwise be the overwhelming power of plutocracy; that strict laissez faire would lead to a modern version of serfdom. Thus you have not only labor laws but also things like campaign donation laws. This is I think one of the major unresolved issues of our society.
Look around; your "would otherwise..." has already happened.
  #44  
Old 05-22-2018, 08:01 AM
UltraVires UltraVires is online now
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 12,987
Quote:
Originally Posted by Whack-a-Mole View Post
I do not think it makes arbitration illegal. However, it does say this (highlighting mine):



That, to me, would seem to allow them to engage in a class action lawsuit against their employer.
Under your interpretation, it would mean that the employees could form a mob and fire bomb the home of the boss that they don't like?

If this law impliedly repeals the FAA, does it not also impliedly repeal any laws against violence? After all, that would restrain their right to "engage in other concerted activities."

Since a group firebombing of a home is an "other concerted" activity, then Congress clearly meant to repeal any prior law forbidding it.

I understand it is an absurd example, but one that would logically follow if the dissent's view was adopted.
  #45  
Old 05-22-2018, 09:24 AM
Whack-a-Mole Whack-a-Mole is offline
Member
 
Join Date: Apr 2000
Location: Chicago, IL USA
Posts: 19,707
Quote:
Originally Posted by UltraVires View Post
Under your interpretation, it would mean that the employees could form a mob and fire bomb the home of the boss that they don't like?
What?

Where do you think anything I said or the NRLA says implies approval for illegal behavior?

Do you really think when congress wrote, "to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection", they meant it to include mobs and firebombing?

Last edited by Whack-a-Mole; 05-22-2018 at 09:27 AM.
  #46  
Old 05-22-2018, 09:32 AM
UltraVires UltraVires is online now
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 12,987
Quote:
Originally Posted by Whack-a-Mole View Post
What?

Where do you think anything I said or the NRLA says implies approval for illegal behavior?

Do you really think when congress wrote, "to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection", they meant it to include mobs and firebombing?
In short, your claim is that Congress passed two laws:

1. The FAA which allows and shows a preference for arbitration agreements
2. The NLRA which allows employees "to engage in other concerted activities"

Your argument (and correct me if I am misstating it) is that Congress must have meant to repeal the FAA at least as it applies to the NLRA otherwise employees couldn't engage in "other concerted activities" like class action lawsuits, correct?

My hypothetical is that Congress passes these two laws:

1. A federal law against firebombing.
2. The NLRA (with the same provision as above).

Under your argument, wouldn't the same language act as a repealer of the firebombing statute?

ETA: I think it is clear that "other concerted activities" are not meant to be unlimited despite the existence of prior law. It did not mean to repeal the FAA, and such an interpretation is consistent with case law.

Last edited by UltraVires; 05-22-2018 at 09:35 AM.
  #47  
Old 05-22-2018, 11:38 AM
DSYoungEsq DSYoungEsq is offline
Member
 
Join Date: Jul 1999
Location: Indian Land, S Carolina
Posts: 13,165
Quote:
Originally Posted by Little Nemo View Post
Let's apply that principle. The Eighth Amendment prohibits "cruel and unusual punishments". Does that law therefore prohibit drawing and quartering? Apparently not. Drawing and quartering was an accepted historical legal punishment. And the Eighth Amendment didn't explicitly include it in its blanket prohibition. According to your argument, if Congress had meant to ban drawing and quartering as a cruel and unusual punishment, it would have specifically said so.

I disagree with this interpretation. When a law is enacted which bans a broad category of actions as illegal, it includes all of those actions - even if it doesn't list them all individually.
You know, if you're going to argue by analogy, it helps if you make your cases analogous.

In this case, we have one statute written after a second statute. The first has a specific provision regarding arbitration clauses; the second has a generalized statement about actions that is being inferred to include a ban on those arbitration clauses. For your example to have analogous value, the situation would have to be that the Constitution specifically says, "You can draw and quarter people," and the Eighth Amendment would then come along later. Then the question would be, did the general ban on "cruel and unusual punishment" impliedly over-ride the provision of the Constitution permitting drawing and quartering people.

The answer, of course, is that, applying the same construction/interpretation rules used by the court here, no, it wouldn't.
  #48  
Old 05-22-2018, 11:47 AM
DavidwithanR DavidwithanR is offline
Suspended
 
Join Date: Feb 2018
Posts: 1,893
Quote:
Originally Posted by AK84 View Post
Such a clause would fail and probably void the whole contract. Fail on basic principles of contract long before any Arbitration issues arose. Probably attract criminal liability as well.
ETA: In response to the "sex with boss" clause mentioned above.
Well, the point was that having a mandatory arbitration clause in a contract causes the contract to fail on basic principles of contract also, since mandatory arbitration abrogates the employee's right to negotiate.
  #49  
Old 05-22-2018, 12:31 PM
DavidwithanR DavidwithanR is offline
Suspended
 
Join Date: Feb 2018
Posts: 1,893
My reasoning is encapsulated in this:

"Ah, but this is different from other imposed contracts - you freely negotiated this imposed contract"


... When the parties aren't free to negotiate, it isn't even a contract.
  #50  
Old 05-22-2018, 03:31 PM
Whack-a-Mole Whack-a-Mole is offline
Member
 
Join Date: Apr 2000
Location: Chicago, IL USA
Posts: 19,707
Quote:
Originally Posted by UltraVires View Post
My hypothetical is that Congress passes these two laws:

1. A federal law against firebombing.
2. The NLRA (with the same provision as above).

Under your argument, wouldn't the same language act as a repealer of the firebombing statute?

ETA: I think it is clear that "other concerted activities" are not meant to be unlimited despite the existence of prior law. It did not mean to repeal the FAA, and such an interpretation is consistent with case law.
This is just a weird analogy and not remotely akin to this issue.

As it happens though it is the Supreme Court which has dramatically expanded the FAA far from what it was originally set to do. If you want to see the judicial activism look to the likes of what Gorsuch and his ilk have done.

Earlier I mentioned that it seems odd it had taken over 80 years for us to be arguing how the NLRA is stomping on the FAA. Well, it has taken this long because the Supreme Court has, since the 80's, been expanding the reach of the FAA well beyond where it started. Expanded it so far it is only now that they can make the case it impinges on the FAA.

Quote:
The current arbitration epidemic is a result of judicial developments that began in the 1980s, when the U.S. Supreme Court reinterpreted a little-known federal law enacted in 1925 called the Federal Arbitration Act (FAA). The FAA provides that when a dispute involves a contract that has a written arbitration clause, a court must, upon motion, stay litigation so that the dispute can go to arbitration.4 And after an arbitration proceeding is complete, the FAA gives courts extremely limited power to review arbitral awards, no matter how erroneous they might be. Under the statute, an award can only be set aside on four grounds: it was procured by fraud, the arbitrator was biased, the arbitrator refused to hear relevant evidence, or the arbitrator exceeded his or her power as set out in the parties’ arbitration agreement. Each of these has been interpreted exceptionally narrowly. There is no provision for overturning an award based on errors of fact, contract interpretation, or law.

Initially, the drafters, commentators, and the courts assumed that the FAA applied only to a narrow range of commercial disputes—those brought in a federal court pursuant to its power to decide issues arising under federal law. However, in the 1980s the U.S. Supreme Court radically expanded the scope of the statute. Today courts interpret the statute to apply to disputes of all types, whether brought in a federal or a state court. Moreover, the Supreme Court has held that the FAA overrides any state law that runs counter to the pro-arbitration policies of the FAA. It is important to recount the path by which this transformation occurred because it shows how entrenched the current interpretation has become and how overwhelming are the obstacles to change under the statute as currently interpreted. This, in turn, explains why new congressional action is necessary.

SOURCE: https://www.epi.org/publication/the-...tion-epidemic/
That link above does a far better job than I can ever do of laying this all out. It is very, very long and very thorough. I highly recommend anyone interested in this have a look at it.

When we consider that Gorsuch says the court's purpose is to harmonize the laws yet we see him gutting the NLRA and repeatedly boxing employees out of the legal system to seek remedies it is hard to see how protecting the FAA is the thing to do here.
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:23 AM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2018, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Publishers - interested in subscribing to the Straight Dope?
Write to: sdsubscriptions@chicagoreader.com.

Copyright © 2018 STM Reader, LLC.

 
Copyright © 2017