Tag Archive: Neil Gorsuch

Mar 06

The Neil Gorsuch Effect on SCOTUS Labor Law Jurisprudence

By Michael C. DeBenedetto III.
Judge Neil Gorsuch of the Tenth Circuit of the United States Court of Appeals was recently nominated to the Supreme Court by President Donald Trump to replace the late Antonin Scalia. In this commentary, I address the questions of how Judge Gorsuch would likely lean over questions surrounding the major cases of Abood v. Detroit Board of Education[1] and Friedrichs v. California Teachers Association[2] if such cases appeared again. Friedrichs builds off Abood, which was recently heard by the Supreme Court, but resulted in a deadlock decision, thus binding the circuit court decision.

In Abood, the Court held that nonunion members had the freedom to opt out of union political donations if they chose not to support the union’s endorsed candidate. However, the Court explained, “Insofar as the service charges are used to finance expenditures by the Union for collective-bargaining, contract-administration, and grievance-adjustment purposes, the agency-shop clause is valid.” The Court further explained that nonpolitical activities relating to union representation do not violate First Amendment rights, and the union would maintain the right to collect from nonunion members for the purpose of these resources.

Friedrichs addresses some of the issues raised in Abood, most notably in terms of payment of union dues and the “free-rider” concept. In Friedrichs, plaintiffs were public school teachers who resigned their union membership and objected paying the nonchargeable portion of their yearly agency fee. They believed that being required to pay the fee, even though they were no longer union members, violated their rights to freedom of speech and association under the First and Fourteenth Amendments to the Constitution. The court explained, “in Abood, the Supreme Court upheld the constitutional validity of compelling employees to support a particular collective bargaining representative . . . .” The Ninth Circuit affirmed the judgment of the district court.

Some of Judge Gorsuch’s cases may be revealed in his leanings on potential union dues cases and free speech. The cases are Laborers’ International Union Local 578 v. NLRB[3] and Hobby Lobby v. Sebelius[4]. After reviewing these cases, I believe it is likely he would lean towards the employee side and reject the system compelling nonunion members to pay agency fees kept intact by Friedrichs.

Laborers’ International Union Local 578 concerned a union that forced an employer to discharge an employee because of his failure to pay union dues. The Tenth Circuit heard this case on appeal. Judge Gorsuch, writing for the majority, explained that the standard to invoke a union-security clause that allowed for an adverse action to be taken against an employee was not met. It required the union to: (1) provide the employee with actual notice of the precise amount due, including the months for which dues are owed; (2) explain how it computed the amount due; (3) give the employee a reasonable deadline for payment; and (4) explain to the employee that failure to pay will result in discharge.

The letter communicated to the employer concerning the dismissal of the employee did not meet the above requirements. Judge Gorsuch cited the NLRA and explained that the failure to meet these elements “restrains or coerces” the employee from his right to refrain from union membership. When considered with the Friedrichs facts, if a reasonable basis is established, one may foresee Judge Gorsuch siding with the rights of the employee to not be compelled to pay the agency fees.

A viable counterargument, however, could be found later in the opinion where Judge Gorsuch emphasizes the importance of his philosophy of judicial restraint and likens the role of the court as an “instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call.” In considering Abood and Friedrichs, Judge Gorsuch may be hesitant to impose his personal opinion on what he views as the optimal status of the employee and union relationship because of the settled Abood and Friedrichs law. However, I find his clear prioritizing of the rights of the employee will be more heavily considered if given the chance to address the question of agency fees.

The question of free speech also ties into the conflict over agency fees. Raymond J. Nhan and David Dewhirst have discussed, in “Friedrichs Redux,” that Judge Gorsuch’s opinion in Hobby Lobby—when it was at the circuit level—may also give insight into his leanings regarding subsidizing speech.[5] In Hobby Lobby, Judge Gorsuch concurred in the decision granting freedom for closely held owners of Hobby Lobby Corporation from having to subsidize certain categories of abortifacients and contraceptives for their employees. He explained, “As the Greens [owners] describe it, it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible.” It is important to focus on Judge Gorsuch’s emphasis on the terms “personal involvement in facilitating access.” He is favoring the rights of the individuals in these facts. It is not unreasonable to consider he might be open to the personal decisions and rights of the employees to reject paying agency fees as nonunion members considering they do not want to be a part of the union.

In short, based on his opinions in Local 507 and Hobby Lobby, Justice Gorsuch would likely side against unions over payment of agency fees at the Supreme Court level.

[1] 431 U.S. 209 (1977).

[2] 136 S Ct 1083 (2016), reh denied 136 S Ct 2545 (2016).

[3] 594 F3d 732 (10th Cir 2010).

[4] 723 F3d 1114 (10th Cir 2013).

[5] Raymond J. Nhan & David Dewhirst, Friedrichs Redux, The Federalist Society Blog                (February 2, 2017),    http://www.fed-soc.org/blog/detail/friedrichs-redux.