You're listening to Bloomberg Law with June Grasso, Michael Best, and Greg Store. In its last term, the Supreme Court looked ready to deliver a major blow to public sector unions. The issue is whether workers have a First Amendment right not to contribute financially to the union that represents them
in collective bargaining. By all appearances, the Court's conservative wing was poised to rule that workers did did not have to pay what are known as agency fees, and along the way, the Court would overturn a forty year old president known as a Bood versus Detroit Board of Education. Then Justice Anton Scalia died and deprived Conservatives of the
fifth vote they needed. The Court deadlocked four to four, and with the prospect that Scalia's successor might be a Democratic appointee, the issue looked like it might go away. But then Donald Trump won the election and with it the opportunity to appoint a Conservative to fill the Scalia seat. That raises the prospect and perhaps the likelihood, that mandatory agency fees are again in peril, at least in the
public sector. With us to talk about the issues the issue once against all Secunda, a law professor at Marquette University and now Kevin McGowan, Senior legal editor at Bloomberg b NA. Paul, is it inevitable that the court will take up this issue and overrule the about precedent. I think it is likely to happen, unfortunately eventually, but it's
not going to happen quickly. The Democrats are still very upset about being not being able to appoint a justice to to replace Justice Clear for nine months, and I would think that there's gonna be tremendous pushback if the nominee from the Republicans is extremely conservative. Um Eventually, of course it's a four year term, so they're going to
broker some kind of deal. Will just be very interesting what kind of appointment is eventually made and whether that person has strong feelings concerning the public's sector union mandatory fee issue. But there are other cases that are currently in the system that could raise the same issue that Freedricks rose uh this year. And of course if there's five Conservatives and and four Progressives, that could spell trouble
for public sector union mandatory dues. Kevin, this is my best the The President elect has put out a list of judges that he says he will use to appoint uh somebody to the Supreme Court he campaigned on it. Do we know if everybody on that list is going
to be against a boot and wanting to overturn it. Uh? No, we probably don't know specifically, But I think it's probably a pretty fair guest that any judge that a President Trump does nominate is going to be sympathetic to the arguments raised by the employees who aren't members of the union.
Their their argument, how along, has been they have a first memory right not to associate with the union and not to be forced to pay dues to union with whom they disagree on many issues the court in the past it's conservative branch as rule that you know, money is speech. So there's a there's already sympathetic um, certainly sympathy umo the flour conservative justices in the Court, and probably sympathy from any judge that Trump would elect that
people shouldn't be compelled to support speech with which they disagree. Well, what are some of the other issues that may come up or before the Supreme Court involving unions. Well, some of the other issues could be the class action waivers
h with regard to arbitration agreements. The National Labor Relations Board has said that having class action waivers and arbitration agreements and employment is inconsistent with rights that employees have under Section seven of the National Labor Relations Acting, particularly to work together concertedly to improve the conditions in their workplace. A number of circuit courts UH federal appellate courts have disagreed and said that the Federal Arbitration Act takes precedent
and that you're allowed to have class action waivers. There's actually a couple of petitions for searciari right now on that issue, and if there is a fifth Conservative Justice, I wouldn't be surprised to see them take that case and rule in favor of allob and class action waivers. That is certainly one of the big ones. The other big issue could be the joint employer doctrine issue, the one that allows UH employees not just to sue their franchise e owner, but the franchise or like in the
McDonald's situation. UH, there could be an interpretation of the law that makes the broader definition recently adopted by the National Labor Relations Boards somewhat in jeopardy. We are going to have to leave it there. Thank you to our guest Bloomberg B and a senior legal editor, Kevin McGowan, and Paul Secunda, a law professor at Marquette University, talking about the impact the Supreme Court might have on labor law and labor unions. Still still to come here on
Bloomberg Law. Some new developments in the big legal fight over breakfast brexit Brexit excuse me, and we'll talk about the possibility of protesters at the Trump inaugural parade and where those people can stand. That's all coming up on Bloomberg Law. This is Bloomberg. Yeah,