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  Yesterday, the Supreme Court ruled against unions in an important case. In the decision, the Court made clear that it wants to encourage more tension in the workplace rather than promote workplaces that are harmonious and productive. It's a case that should make even more clear what the stakes are come November.

  The always-reliable Linda Greenhouse of The New York Times reports:

The court ruled 7 to 2 that federal labor law pre-empted a California law that limited many employers from speaking to their employees about union-related issues.

The California law, enacted in 2000 with the support of organized labor, was similar to laws in a dozen other states, with similar bills pending in still more states. It was upheld by the federal appeals court in San Francisco in a lawsuit brought by the Chamber of Commerce, supported by a number of other groups including the National Right to Work Legal Defense Foundation.

Under the law, employers that received state grants, contracts or reimbursements could not use the money to "assist, promote or deter union organizing." Certain activities favoring unions were permitted, however.

Writing for the majority on Thursday, Justice John Paul Stevens said federal labor law had embraced "wide-open debate" about labor issues, as long as the employer did not try to coerce employees into accepting its point of view. Consequently, the state law is incompatible with federal labor law, the court concluded.

Justices Breyer and Ruth Bader Ginsburg dissented in the case, Chamber of Commerce v. Brown, No. 06-939. Legislatures normally have "broad authority to decide how to spend the people’s money," they said.

  So, here was the basic concept behind the legislation. California lawmakers said, "Look, if you are a company getting money from the state--that would be taxpayers money--you can't use that money to run an anti-union campaign. As a state, we're happy to give out state money for certain positive purposes but we don't think union-breaking is a good thing for our state".  Think of it of trying to stop an Oliver North-like diversion of funds: pocketing funds for one stated purpose but using it for another purpose--in this case, a purpose that the state seemed not to be good public policy. It should be no different than a state saying, "we'll give a company money but it can't use that money to encourage dumping of toxic waste in your drinking water." Seems pretty straight-forward.

  Note the forces aligned against the legislation: the Chamber of Commerce and, among others, the National Right To Work Legal Defense Foundation, which is simply a front for big business and right-wing, anti-union forces.

  It's worth reading the entire decision to grasp how foolish the Supreme Court decision is--and what a useful roadmap it is to watch how the Court will torture precedent to reach the outcome it desires. Stevens argues that, somehow, the California prohibition interferes with a company's free speech and interferes with market forces.

  The best way to understand the Stevens decision is to read the dissent by Justice Stephen Breyer, who writes that California's statute:

...does not seek to compel labor-related activity.  Nor does it seek to forbid labor-related activity.  It permits all employers who receive state funds to "assist, promote, or deter union organizing."  It simply says to those em-ployers, do not do so on our dime....[emphasis added]"



Second, California’s operative language does not weaken or undercut Congress’ policy of "encourag[ing] free debate on issues dividing labor and management." Linn, supra, at 62.  For one thing, employers remain free to spend their own money to "assist, promote, or deter" unionization. More importantly, I cannot conclude that California’s statute would weaken or undercut any such congressional policy because Congress itself has enacted three statutes that, using identical language, do precisely the same
 Congress has forbidden recipients of Head Start funds from using the funds to "assist, promote, or deter union organizing."  42 U. S. C. §9839(e).  It has forbidden recipients of Workforce Investment Act of 1998 funds from using the funds to "assist, promote, or deter union organiz- ing."  29 U. S. C. §2931(b)(7).  And it has forbidden recipi-ents of National Community Service Act of 1990 funds from using the funds to "assist, promote, or deter union organizing."  42 U. S. C. §12634(b)(1).[emphasis added]

  And it is interesting how little conservatives think of "states' rights" (in this case, the state's desire to decide how its taxpayers' money is spent) when it doesn't fit the outcome the conservatives seek.

  Breyer also beautifully, and simply, eviscerates the majority's position that the California law did not prevent spending money in places where union organizing is encouraged i.e, where the employer has pledged neutrality:

The majority further objects to the fact that the statute does not "apply" the constraint "uniformly," because it permits use of state funds for "select employer advocacy activities that promote unions."  Ante, at 10.  That last phrase presumably refers to an exception in the California statute that permits employers to spend state funds to negotiate a voluntary recognition of a union.  But this exception underscores California’s basic purpose— maintaining a position of spending neutrality on contested labor matters.  Where labor and management agree on unionization, there is no conflict.[emphasis added]

  Here is what this boils down to, outside the legal mumbo-jumbo. California was trying to create an environment where workers and employers could try to create neutral and harmonious environments, where workers would be able to decide, free of the terror campaigns that employers use, whether they want to be in a union or not. The state said, "we can try to do that by making it clear to employers that the state seeks good relations in workplaces and we are assisting that by making sure employers don't use state money to poison the well." The Supreme Court thumbed its nose at that intention. It put its stamp on a policy of more hostile, contentious workplace relations. And we want to be globally competitive by having more effective workplaces? Hah.

  A note here that is important: on labor cases, the traditional current 5-4 conservative-liberal split (and it was true in other configurations of the Court), does not play out in the way you would expect. When it comes to union power, you can often find "liberal" judges voting against the interests of labor because, in this case, "liberal" means a judge who is a believer in the almighty free-market and sees a playing field where employers and unions are equal and operating on an even playing field. Which is, of course, a crock.

  So, when we--I mean by that, pro-labor advocates--imagine a dream future Justice, we can't be satisfied with a "liberal" or "moderate". Rather, the ideal candidate for labor on the Court is someone who understands that there is a built-in bias for employers in the workplace--after all, employers hold the power over jobs--, that the free-market is an ideology that spawns enormous injustice and that the role of the Court is to act as the guardians of workers. Obviously, the likelihood of such a Justice being appointed even by a Democrat is quite small bu, if you want to fantasize, I would think names like Sherrod Brown, David Bonior or Maxine Waters would fit the right judicial temperament.

  A final observation on "freedom of speech". One of the great travesties of our judicial system has been to confer on corporations the First Amendment rights that individuals have. There is a long history about how this evolved. But, it has helped pervert our economic system. The First Amendment, indeed, was put in place, as we know, to guarantee that individuals' voices would never be silenced by larger, concentrated power. Back then, the Framers had in mind the King of England. That king is now a figurehead, replaced by the kings of commerce who hold far more power over individuals' lives than the Royals do.

  In my view, one of the great victories we could ever imagine--and it is hard to imagine it happening in the current political world--is to rescind that corporate First Amendment right. It has done--and will do--damage to our economic livelihoods, not the least of which allow corporations to continue a campaign of terror in the workplace that will continue to diminish the livelihoods and rights of most Americans.

Originally posted to Tasini on Fri Jun 20, 2008 at 07:07 AM PDT.

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