January 31, 2014

A tale of two cases

Author: By Richard E. Casagrande, NYSUT General Counsel
Source: NYSUT United

I graduated from law school in 1975. To many in my generation of attorneys, the Supreme Court was truly a temple of justice; the one place where working people, minorities, the poor and the unpopular could seek justice and stand on equal footing with the rich and powerful.

It was the Supreme Court that ordered an end to racially segregated schools, that defended academic freedom, and that upheld the right of a public school teacher to criticize her board of education’s budget in a letter to the editor.

Times change.

More recently, the Supreme Court stopped the recount of a contested presidential vote, allowed corporations and wealthy Americans to pour unlimited amounts of money into politics, and gutted the Voting Rights Act.

And, if you are a public (or private) employee, perhaps you have noticed that your legal rights are under unprecedented assault. Tenure, due process and seniority protections, collective bargaining rights and pensions are all threatened.

Perhaps most ominous of all, your very right to speak, individually or collectively, is under legal attack.

Two recent Supreme Court cases — one decided, one pending — illustrate the scope of this assault.

Garcetti v. Ceballos

In 2006, the same Supreme Court that once held that neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" struck a death blow to those rights.

Garcetti involved a public prosecutor who was fired for revealing the misrepresentation of evidence in a criminal prosecution. The Supreme Court, in a 5-4 ruling, held that when a public employee speaks as a public employee, as part of his or her job duties, the speech is not protected by the First Amendment.

So, under Garcetti, if you are a teacher who reports bullying, or a bus driver who reports defective brakes, or an aide or nurse who reports child or patient abuse, you may be protected by your union contract, or by state tenure or whistleblower or reporting laws, but not under the First Amendment.

Harris v. Quinn

On Jan. 21, the Supreme Court heard argument in a case that may affect the collective bargaining rights of every public employee in America. The plaintiffs in Harris are health workers, represented by attorneys from a right-wing, anti-union foundation.

They argue that, Garcetti notwithstanding, they should have a First Amendment right not to pay any agency fees to the union that represents them in collective bargaining.

Plaintiffs are asking the Supreme Court to rule that the entire American public employment sector must be under "right to work." Of course, as Dr. Martin Luther King Jr. cautioned, "right to work" is about neither rights nor work, it is about destroying labor unions and collective bargaining.

If the Supreme Court agrees, it would mean that your union would still have to represent every member of the bargaining unit, but free-riders could choose to pay nothing for the representation.

It would seem the height of irony for the same court that in Garcetti so restricted public employees’ workplace speech to establish a singularly new First Amendment protection: the right of workers to exempt themselves from having to pay their fair share of the cost of union representation.

Such a ruling would divide and weaken all public sector unions, by giving each person represented by the union the unilateral right to decide whether to contribute financially to the cost of representation.

The Supreme Court may not go so far as the Harris plaintiffs ask, because it would require overturning decades of judicial precedent, including several Supreme Court precedents upholding agency fees.

It would invalidate major portions of the labor laws of many states, including New York, which have chosen to extend effective collective bargaining rights to public employees.

It would invalidate provisions in thousands of labor contracts. It would turn working people against each other. Such a decision would be, as Justice Kagan noted in oral argument, a "radical" step.

Radical as this attack on unions is, I am not surprised by the attack, nor should you be. Recent, radical attacks on unions show that the powerful special interests supporting the Harris plaintiffs do not want you or any working people to have a voice about your employment rights, much less the effective voice a union can provide.

They say you earn too much. They say you do not deserve job or retirement security. They are coming after these rights, not just in Wisconsin, Ohio and Detroit, but right here in New York.

What can you do? Support and be active in your local. There is power in numbers and in unity. The rights you have as a working person — your salary, benefits, pension and your right to speak collectively with your co-workers — did not fall from the sky.

These are fought-for rights, and today, we will all need to fight together to keep them.

Harris will be decided by July.