Latest proof that Donald Trump lied about being for the "common man."

When President Trump takes credit for appointing Justice Gorsuch -- as he often does -- he should be held to account for the anti-worker appointment.

Yesterday, the United States Supreme Court, in a 5-4 decision in Epic Systems v. Lewis, ruled that workers could be barred from bringing a class action suit to recover payments unlawfully withheld under the Fair Labor Standards Act.   The decision was written by Justice Neil Gorsuch.  Justice Gorsuch’s decision was properly denounced by proponents of labor rights and in a stinging dissent by Justice Ruth Bader Ginsburg.   

Briefly, the majority opinion by Justice Gorsuch held that employers, as a condition of employment, may require prospective employees to agree in advance to private arbitration of disputes, on a case-by-case basis, rather than keeping the right to sue in court.  Justice Gorsuch held that the federal Arbitration Act, which generally defers to private arbitration agreements, was not superseded by the protections of the National Labor Relations Act.  In plain English, that means that employers may, as a practical matter, avoid their legal responsibility to pay workers according to law, even though the NLRA protects collective action by workers.  Justice Ginsburg clearly set forth the matter at pp. 1-2 of her dissent:

The employees in these cases complain that their employers have underpaid them in violation of the wage and hours prescriptions of the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq., and analogous state laws. Individually, their claims are small, scarcely of a size warranting the expense of seeking redress alone. . . . But by joining together with others similarly circumstanced, employees can gain effective redress for wage underpayment commonly experienced. To block such concerted action, their employers required them to sign, as a condition of employment, arbitration agreements banning collective judicial and arbitral proceedings of any kind. The question presented: Does the Federal Arbitration Act (Arbitration Act or FAA), 9 U. S. C. §1 et seq., permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA), 29 U. S. C. §151 et seq., “to engage in . . . concerted activities” for their “mutual aid or protection”? §157. The answer should be a resounding “No.”

In 1978, I was the most junior lawyer on the National Labor Relations Board's Supreme Court brief in  Eastex v. National Labor Relations Board  The issue in that case was whether the NLRA, which grants to employees the right to “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,” included protection against employer prohibition of distribution of an employee newsletter which advocated for increase in the minimum wage (even though all of those employees made more than the minimum wage) and for repeal of the Texas “Right to Work” law. 

The employer in Eastex asserted that since the employee advocacy there did not involve actual union organizing or collective bargaining, the NLRA did not prevent it from barring the distribution. 

The Supreme Court disagreed 7-2, in a decision written by Justice Lewis Powell, who was appointed to the Court by President Nixon.   Typically, Powell, a corporate lawyer by trade, was not sympathetic to unions.  But, as a jurist who truly endeavored to call “balls and strikes” (Chief Justice Roberts’ formulation, which he often, as in Epic Systems, disregards),  Justice Powell recognized that the language of the NLRA, bolstered by everything that led up to the enactment of the NLRA, required a ruling in favor of the employees.  The linchpin of the New Deal’s National Labor Relations Act was the recognition that individual workers typically were in no position to individually challenge employers, who had infinitely greater economic power.  Only through collective action could every-day people level the playing field.  And that is why the protections provided by the NLRA went beyond direct protections of collective bargaining to include “other mutual aid or protection.”  (Having gone to work for the NLRB to help to protect worker rights, and having become steeped in the details of the origin of New Deal era labor laws, the Eastex decision holds a special place in my heart).

Justice Gorsuch ignored the truths set forth in Eastex.  And he ignored the long-standing precedent that the NLRA protects worker actions for “other mutual aid or protection” even when no union is in the picture.  See, for example, Brown & Root v. National Labor Relations Board, a 1979 case from the Fifth Circuit.   It is hard to see how a class action lawsuit by employees to secure compliance with the Fair Labor Standards Act in order to secure payments they should have received is not action for “mutual aid or protection.”

The Arbitration Act, which Justice Gorsuch invoked, was enacted in 1925, ten years before the NLRA was enacted in 1935.  The NLRA pretty clearly superceded the Arbitration Act’s requirements when they were in conflict with that later-enacted statute.  Why?  Because the Arbitration Act includes a “saving clause,” which allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract,” including “duress or unconscionability.”  The language and circumstances surrounding the enactment of the NLRA ten years later demonstrate that the arbitration contract at issue in Epic Systems was the sort of contractual requirement that is unconscionable – and that is why workers’ efforts to act collectively for “mutual aid and protection” are protected by the NLRA Justice Ginsburg’s dissent, which provides an excellent discussion of the origins and rationales for the worker protections enacted during the New Deal, shows the result-oriented, pro-employer bias of Justice Gorsuch’s reasoning.

We saw during Justice Gorsuch’s confirmation hearings that, in labor disputes, he will find a way to find against workers – the very people Donald Trump asserted he would protect if elected President.  Just take a few minutes to read about the TransAm Trucking case or listen to former Senator Franken’s description of then-Judge Gorsuch’s dissent.  See, here.  Justice Gorsuch is reflexively pro-business.  And in both TransAm and Epic Systems,  we see what that means for everyday working people.

So next time President Trump brags about having put Neil Gorsuch on the Supreme Court, call him out.  Trump asserted he would be the President for the “common man.”  But there was no mystery concerning Neil Gorsuch's approach to deciding cases.  Trump knew exactly what he was doing.  Trump lied about wanting to help the "common man."  And Neil Gorsuch’s judicial approach is a classic example proving that Trump lied.  Donald Trump is a parody of the greedy businessman.