WEBVTT - Secunda and McGowan on Trump Supreme Court (Audio)

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<v Speaker 1>You're listening to Bloomberg Law with June Grasso, Michael Best,

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<v Speaker 1>and Greg Store. In its last term, the Supreme Court

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<v Speaker 1>looked ready to deliver a major blow to public sector unions.

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<v Speaker 1>The issue is whether workers have a First Amendment right

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<v Speaker 1>not to contribute financially to the union that represents them

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<v Speaker 1>in collective bargaining. By all appearances, the Court's conservative wing

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<v Speaker 1>was poised to rule that workers did did not have

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<v Speaker 1>to pay what are known as agency fees, and along

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<v Speaker 1>the way, the Court would overturn a forty year old

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<v Speaker 1>president known as a Bood versus Detroit Board of Education.

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<v Speaker 1>Then Justice Anton Scalia died and deprived Conservatives of the

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<v Speaker 1>fifth vote they needed. The Court deadlocked four to four,

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<v Speaker 1>and with the prospect that Scalia's successor might be a

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<v Speaker 1>Democratic appointee, the issue looked like it might go away.

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<v Speaker 1>But then Donald Trump won the election and with it

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<v Speaker 1>the opportunity to appoint a Conservative to fill the Scalia seat.

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<v Speaker 1>That raises the prospect and perhaps the likelihood, that mandatory

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<v Speaker 1>agency fees are again in peril, at least in the

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<v Speaker 1>public sector. With us to talk about the issues the

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<v Speaker 1>issue once against all Secunda, a law professor at Marquette

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<v Speaker 1>University and now Kevin McGowan, Senior legal editor at Bloomberg

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<v Speaker 1>b NA. Paul, is it inevitable that the court will

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<v Speaker 1>take up this issue and overrule the about precedent. I

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<v Speaker 1>think it is likely to happen, unfortunately eventually, but it's

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<v Speaker 1>not going to happen quickly. The Democrats are still very

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<v Speaker 1>upset about being not being able to appoint a justice

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<v Speaker 1>to to replace Justice Clear for nine months, and I

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<v Speaker 1>would think that there's gonna be tremendous pushback if the

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<v Speaker 1>nominee from the Republicans is extremely conservative. Um Eventually, of

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<v Speaker 1>course it's a four year term, so they're going to

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<v Speaker 1>broker some kind of deal. Will just be very interesting

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<v Speaker 1>what kind of appointment is eventually made and whether that

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<v Speaker 1>person has strong feelings concerning the public's sector union mandatory

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<v Speaker 1>fee issue. But there are other cases that are currently

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<v Speaker 1>in the system that could raise the same issue that

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<v Speaker 1>Freedricks rose uh this year. And of course if there's

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<v Speaker 1>five Conservatives and and four Progressives, that could spell trouble

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<v Speaker 1>for public sector union mandatory dues. Kevin, this is my

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<v Speaker 1>best the The President elect has put out a list

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<v Speaker 1>of judges that he says he will use to appoint

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<v Speaker 1>uh somebody to the Supreme Court he campaigned on it.

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<v Speaker 1>Do we know if everybody on that list is going

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<v Speaker 1>to be against a boot and wanting to overturn it. Uh? No,

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<v Speaker 1>we probably don't know specifically, But I think it's probably

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<v Speaker 1>a pretty fair guest that any judge that a President

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<v Speaker 1>Trump does nominate is going to be sympathetic to the

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<v Speaker 1>arguments raised by the employees who aren't members of the union.

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<v Speaker 1>Their their argument, how along, has been they have a

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<v Speaker 1>first memory right not to associate with the union and

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<v Speaker 1>not to be forced to pay dues to union with

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<v Speaker 1>whom they disagree on many issues the court in the

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<v Speaker 1>past it's conservative branch as rule that you know, money

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<v Speaker 1>is speech. So there's a there's already sympathetic um, certainly

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<v Speaker 1>sympathy umo the flour conservative justices in the Court, and

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<v Speaker 1>probably sympathy from any judge that Trump would elect that

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<v Speaker 1>people shouldn't be compelled to support speech with which they disagree. Well,

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<v Speaker 1>what are some of the other issues that may come

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<v Speaker 1>up or before the Supreme Court involving unions. Well, some

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<v Speaker 1>of the other issues could be the class action waivers

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<v Speaker 1>h with regard to arbitration agreements. The National Labor Relations

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<v Speaker 1>Board has said that having class action waivers and arbitration

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<v Speaker 1>agreements and employment is inconsistent with rights that employees have

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<v Speaker 1>under Section seven of the National Labor Relations Acting, particularly

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<v Speaker 1>to work together concertedly to improve the conditions in their workplace.

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<v Speaker 1>A number of circuit courts UH federal appellate courts have

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<v Speaker 1>disagreed and said that the Federal Arbitration Act takes precedent

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<v Speaker 1>and that you're allowed to have class action waivers. There's

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<v Speaker 1>actually a couple of petitions for searciari right now on

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<v Speaker 1>that issue, and if there is a fifth Conservative Justice,

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<v Speaker 1>I wouldn't be surprised to see them take that case

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<v Speaker 1>and rule in favor of allob and class action waivers.

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<v Speaker 1>That is certainly one of the big ones. The other

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<v Speaker 1>big issue could be the joint employer doctrine issue, the

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<v Speaker 1>one that allows UH employees not just to sue their

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<v Speaker 1>franchise e owner, but the franchise or like in the

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<v Speaker 1>McDonald's situation. UH, there could be an interpretation of the

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<v Speaker 1>law that makes the broader definition recently adopted by the

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<v Speaker 1>National Labor Relations Boards somewhat in jeopardy. We are going

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<v Speaker 1>to have to leave it there. Thank you to our

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<v Speaker 1>guest Bloomberg B and a senior legal editor, Kevin McGowan,

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<v Speaker 1>and Paul Secunda, a law professor at Marquette University, talking

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<v Speaker 1>about the impact the Supreme Court might have on labor

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<v Speaker 1>law and labor unions. Still still to come here on

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<v Speaker 1>Bloomberg Law. Some new developments in the big legal fight

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<v Speaker 1>over breakfast brexit Brexit excuse me, and we'll talk about

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<v Speaker 1>the possibility of protesters at the Trump inaugural parade and

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<v Speaker 1>where those people can stand. That's all coming up on

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<v Speaker 1>Bloomberg Law. This is Bloomberg. Yeah,