# SCOTUS just restored us to Yellow Dog contract days! **URL:** \ **Category:** Great Debates\ **Created:** [May 21, 2018, 3:13pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561 "2018-05-21T15:13:57Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2018, 7:34pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/21 "2018-05-21T19:34:21Z")
> [@Shodan](#): > > 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 21, 2018, 7:43pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/22 "2018-05-21T19:43:09Z")
> [@Little\_Nemo](#): > > 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? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 21, 2018, 9:39pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/23 "2018-05-21T21:39:40Z")
> [@Bricker](#): > > 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): > [@](#): > > 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/national-labor-relations-act-nlra](https://www.nlrb.gov/resources/national-labor-relations-act-nlra) That, to me, would seem to allow them to engage in a class action lawsuit against their employer. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2018, 10:15pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/24 "2018-05-21T22:15:45Z")
> [@Whack-a-Mole](#): > > 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. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 21, 2018, 10:20pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/25 "2018-05-21T22:20:41Z")
> [@Whack-a-Mole](#): > > 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). ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2018, 10:21pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/26 "2018-05-21T22:21:09Z")
> [@Whack-a-Mole](#): > > 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. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2018, 10:31pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/27 "2018-05-21T22:31:51Z")
> [@DSYoungEsq](#): > > 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](https://en.wikipedia.org/wiki/Treason_Act_1351). 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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 21, 2018, 10:33pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/28 "2018-05-21T22:33:54Z")
> [@Little\_Nemo](#): > > 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. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2018, 10:40pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/29 "2018-05-21T22:40:55Z")
> [@John\_Mace](#): > > 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 21, 2018, 10:57pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/30 "2018-05-21T22:57:23Z")
\*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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 21, 2018, 11:57pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/31 "2018-05-21T23:57:28Z")
> [@Whack-a-Mole](#): > > 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: > [@](#): > > 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) (“\*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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 22, 2018, 12:00am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/32 "2018-05-22T00:00:50Z")
> [@Little\_Nemo](#): > > 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? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 22, 2018, 12:44am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/33 "2018-05-22T00:44:51Z")
> [@AK84](#): > > 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. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 22, 2018, 12:46am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/34 "2018-05-22T00:46:18Z")
> [@Bricker](#): > > 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. ---
**Author:** ![Jon\_in\_PDX](https://avatars.discourse-cdn.com/v4/letter/j/d26b3c/32.png) [@Jon\_in\_PDX](https://boards.straightdope.com/u/Jon_in_PDX)\ **Post date:** [May 22, 2018, 12:51am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/35 "2018-05-22T00:51:26Z")
> [@Snowboarder\_Bo](#): > > I’ll be glad to be shown otherwise, but I’m pretty sure [the recent SCOTUS decision](https://apnews.com/09877f4fcf454c59a74b0d066536d15e/Divided-Supreme-Court-rules-for-businesses-over-workers) 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 22, 2018, 12:57am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/36 "2018-05-22T00:57:37Z")
> [@Little\_Nemo](#): > > I already addressed this issue. I’m sorry, but it’s not clear to me in which post you did so. A link, mayhap? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 22, 2018, 1:01am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/37 "2018-05-22T01:01:24Z")
> [@Little\_Nemo](#): > > 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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 22, 2018, 1:37am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/38 "2018-05-22T01:37:31Z")
> [@Bricker](#): > > 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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 22, 2018, 1:48am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/39 "2018-05-22T01:48:35Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 22, 2018, 3:06am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/40 "2018-05-22T03:06:01Z")
> [@Little\_Nemo](#): > > 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. [Previous page](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561.md?page=1) [Next page](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561.md?page=3)