UNEPSE v. Northeast Region

[Purple State]

The Union of Northeast Public Service Employees is appealing the ruling of Northeast CJO RowanBrandon in the case Northeast v. UNEPSE (ruling here) as a violation of the Atlasian Constitution Article VI, Section 10, "Persons in employment shall have the right to organize for the purpose of collective bargaining, with such exceptions as the Senate may provide for by Law on the grounds of vital national interest."

Since UNEPSE is a fictional entity within the game of Atlasia, I will be serving as the union's "voice."

[Sam Spade]

Official Atlasia Supreme Court Release
Nyman, DC

Writ of Certiorari
The Atlasian Supreme Court grants certiorari to hear this case.

Schedule
Petitioner has seventy-two hours to file his brief.  It is expected no later than 5:00PM EDT on Thursday, April 8, 2010.

Respondent has an additional forty-eight hours to file his brief.  It is expected no later than 5:00PM EDT on Saturday, April 10, 2010.

Amicus Briefs will be accepted until 5:00PM EDT, Thursday, April 8, 2010, unless the filing party can show sufficient need.

Additional time may be granted to either party upon a showing of sufficient need.

A possible period of argument (Q&A) may be scheduled after presentation of the briefs in case any member of the Court has any questions for the parties.

[cinyc]

I will be appearing for the Respondent, Northeast Region.  We don't have an AG.

[Sam Spade]

So noted.

[Purple State]

May it please the Court,

Statement of Facts:

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By a vote of 6-1, the bill PASSES.

March 18, 2010 (6:01pm EST): Northeast Lt. Governor Libertas declares the Practical Labor Policy Act passed.

The Practical Labor Policy Act is hereby signed into law.

March 19, 2010 (2:58pm EST): Northeast Governor FallenMorgan signs the PLPA into law.

March 21, 2010 (1:53am): Richard Stern, President of UNEPSE, approaches Governor FallenMorgan for the purposes of negotiating over the PLPA to avoid a strike.

March 25, 2010 (8:00am EST): The Union of Northeast Public Service Employees officially goes on strike after the Government of the Northeast fails to engage in negotiations.

Thank you.

The request for an injunction has been DENIED.

So ordered
x RowanBrandon

March 25, 2010 (5:03pm EST): Northeast Chief Judicial Officer RowanBrandon denies the Northeast Government's request for an injunction against the UNEPSE strike.

April 2, 2010 (11:57am EST): Northeast Chief Judicial Officer RowanBrandon rules in Northeast v. UNEPSE that the UNEPSE "shall pay a sum of $20 million for each day they are on strike going back to the first day that they left their jobs and striked."

April 3, 2010 (11:07pm): The UNEPSE declares an end to the strike pending the resolution of the case by the Supreme Court.

The strike is estimated by the Office of the GM to have cost the Northeast $120 million in lost revenues and productivity.

Question(s) Presented:

The question at the center of the case is whether the Union has the right to strike in response to a constitutional violation by the Employer of the Union's Article VI right to bargain collectively.

Argument:

Before delving into the direct question posed, I first assert that the Practical Labor Policy Act, herein PLPA, is in fact a violation of the Atlasian Constitution.

Article VI, Section 10 of the Atlasian Constitution states:

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Article VI is rightly regarded as the "Bill of Rights" of Atlasia, outlining the rights provided to all Atlasians at any level of government under the "due process clause" of Article VI, Section 2. As a result, both federal and regional governments are bound to uphold these rights of the people.

Article VI, Section 10 provides that all employed individuals have the right to organize in order to bargain collectively, except where the Senate provides otherwise. The ability to regulate the right to bargain collectively is limited exclusively to the federal government. For the Government of the Northeast to pass and implement the PLPA is a clear violation of the constitutional right of workers to strike.

This stance is further defined by the Twenty-Second Amendment to the Atlasian Constitution, which states in part:

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It is again the Senate, and only the Senate, that may create regulations regarding employment protections, such as matters involving unionization, for the protection of commerce.

Having established that the Government of the Northeast has violated the rights of the workers, what may workers do?

The Government argues that a mid-contract strike is illegal; however, they have no basis for this claim. There is no contract available to corroborate this claim, nor did the Government ever pretend to have such evidence.

Rather, we must focus solely on what we have available: the Atlasian Constitution. What does it mean to "organize for the purposes of collective bargaining" under Article VI, Section 10? I contend that these words include the right to strike for the purposes of inducing bargaining, whether over contract renewal or grievances. The UNEPSE strike against the PLPA was the organization of workers for the express purpose of bargaining collectively with the Government of the Northeast over the grievance caused by the passage of the PLPA, as seen by UNEPSE President Richard Stern's deferral of the strike to allow for negotiations to continue.

Conclusion:

An Employer has committed an illegal act for which the Union has submitted a grievance. The Employer fails to respond to the grievance, precipitating a strike.

That is what has happened in the Northeast region. The Government of the Northeast passed an unconstitutional law that the UNEPSE contested. After approaching to negotiate a resolution with the Government over this illegal action, the UNEPSE felt that its advances were not being met in good faith, resulting in a strike.

Now the Government of the Northeast is asking that their illegal actions be paid for by the Union. It is clear that this should not be the case and that the Supreme Court should overturn the ruling of Northeast Chief Judicial Officer RowanBrandon in Northeast v. UNEPSE.

I thank the Court and the Plaintiff rests pending questions by the justices. Please note that I will have limited internet access until late on Sunday, April 11. I will do my best to answer any and all questions in a timely manner.

[Sam Spade]

1) What exactly is the content of the present public employee contracts between UNEPSE and the Northeast?  When exactly is the Northeast in breach of the contract?  Or UNEPSE?

Based on the timeline of events, the Northeast passed this legislation but no review or renegotiation of labor contracts nor the entering into of any new contracts had occurred prior to the strike.  In other words, the strike occurred because of the threat of changes to contracts, not because of any actual/proposed changes.

In contract terms, the most favorable interpretation for you that I can come up with on this front is an "anticipatory breach", but nevertheless, any type of review of the both the UNESPE and NE's actions require these facts for me to determine whether any breach of contract should be addressed by this Court separate of the question of fines imposed and the Constitutional question of the new legislation.

Moreover, if you propose that there is no contract, then, in theory, aren't all of UNESPE's employees simply at-will employees who can be fired at any time by the NE under the common law? (see F.L. 4-3)  I don't believe the "right to organize for purposes of collective bargaining" includes the right to a job.

You need to think through this because any decision we make on a "right to strike" will have residual consequences if there is no written contract that details when workers can be fired.

2) While I agree that the Senate has broad powers to legislate in employment matters, don't you think that, where the Senate has not legislated, save for "restricting the right to organize for the purpose of collective bargaining", which in my reading does not equate to the "right to bargain collectively", the Regions can fill in the gaps pursuant to their own police powers.  In other words, the grant of power to the Senate does not mean the denial of power to the Regions unless so stated in Article I, Clause 7.

[Purple State]

1) What exactly is the content of the present public employee contracts between UNEPSE and the Northeast?  When exactly is the Northeast in breach of the contract?  Or UNEPSE?

Based on the timeline of events, the Northeast passed this legislation but no review or renegotiation of labor contracts nor the entering into of any new contracts had occurred prior to the strike.  In other words, the strike occurred because of the threat of changes to contracts, not because of any actual/proposed changes.

In contract terms, the most favorable interpretation for you that I can come up with on this front is an "anticipatory breach", but nevertheless, any type of review of the both the UNESPE and NE's actions require these facts for me to determine whether any breach of contract should be addressed by this Court separate of the question of fines imposed and the Constitutional question of the new legislation.

Moreover, if you propose that there is no contract, then, in theory, aren't all of UNESPE's employees simply at-will employees who can be fired at any time by the NE under the common law? (see F.L. 4-3)  I don't believe the "right to organize for purposes of collective bargaining" includes the right to a job.

You need to think through this because any decision we make on a "right to strike" will have residual consequences if there is no written contract that details when workers can be fired.

So there is no available contract and I feel it would be improper to retroactively "create" the words of a contract in my capacity as GM. As a result, I cannot say that there is no contract, but there is no available contract.

In that case, you may wish to consider the workers under the "employment at-will" category. So the region would be able to fire its employees for whatever reason (aside from protected classes), but it would also give workers the right to strike for whatever reason without penalty and there could be no breach of contract. If the Northeast wishes to do so, it could fire all 6 million members of the UNEPSE, though that would likely yield economic disaster.

Further, I contend that the PLPA was an unfair labor practice insofar that it limited the Government's ability to bargain in good faith with the Union in the future.

I cannot recommend how to proceed on this front. The Court could compel me as GM to proffer a contract, but I'm not sure how I would go about doing so in an unbiased way given the circumstances.

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Regarding whether the Regions may fill in the gaps of labor laws in Atlasia, I argue that the Constitution explicitly relegates this power to limit that right exclusively to the Senate, stating, "with such exceptions as the Senate may provide for by Law on the grounds of vital national interest." While the Regions may provide for enhanced structure in labor relations, they cannot limit that ability.

As for "right to organize" versus "right to bargain collectively," I misspoke in using that term. My main point is not that the Union has a right to bargain collectively, but it does have the right to organize for such purposes. I argue that this does not mean only the right to form unions, but also the right to organize in a strike in order to push for collective bargaining. I ask that the Court view all previous mentions of the "right to bargain collectively" in my brief as following in this vein.

[Marokai Backbeat]

I will be appearing for the Respondent, Northeast Region.

*whistles innocently*

[Sam Spade]

cinyc still has until 5:00 PM today Marokai.

[Marokai Backbeat]

cinyc still has until 5:00 PM today Marokai.

That he did, Spade.

[Sam Spade]

cinyc still has until 5:00 PM today Marokai.

That he did, Spade.

I'm sending a PM now, but if we don't get anything by this evening (or so), the likely consequence is forbidding any brief from being submitted by the NE.

[cinyc]

cinyc still has until 5:00 PM today Marokai.

That he did, Spade.

I'm sending a PM now, but if we don't get anything by this evening (or so), the likely consequence is forbidding any brief from being submitted by the NE.

Sorry.  I didn't submit anything immediately after UNEPSE's brief was submitted, hoping the GM would argue himself into a corner, and simply forgot the deadline was yesterday.  A brief will be forthcoming.

[cinyc]

As a preliminary matter, counsel for UNEPSE should be estopped from claiming there is no contract in force or UNEPSE's members are at-will employees.  That issue wasn't raised before the Northeast CJO, and UNEPSE cannot start questioning whether a contract exists at all on appeal.  Moreover, an assumption has to be made that there is a contract in place.  Otherwise, UNEPSE could scarcely be objecting to a law that sets out the terms the Northeast wants to see in RENEGOTIATED future contracts.

On the merits, the Northeast's case is very simple.  The Northeast has an existing contract with UNEPSE to provide services for the Northeast.  Going on strike while that contract is still in force over changes that MIGHT occur when renegotiating the next contract is a clear breach of that contract.  The Northeast is living up to its bargain and has NOT repudiated the current UNEPSE contracts or fired UNEPSE employees.  If the Practical Labor Act wasn't clear enough that the Northeast didn't repudiate current contracts, the governor has made this perfectly clear in Executive Order MB-1:

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That unions have a right to collectively bargain is not in dispute.  What UNEPSE does NOT have the right to do is strike in the middle of a contract for no reason other than the Northeast has made public the terms it wishes to include in future contracts.  The time to strike on those matters is when there is when the current contract expires and negotiations reach an impasse.

The Northeast government has an absolute right to set a framework for future negotiations with its own employee groups.  Doing so does not limit UNEPSE's right to collectively bargain, even if provisions of the Practical Labor Policy Act weren't waiveable.  But almost every provision of the Practical Labor Policy Act IS waiveable if the Assembly and Governor agree, rendering UNEPSE's claims that their rights to collectively bargain have been harmed largely moot.  Moreover, the law does not affect other private or municipal unions' contract terms - they do not have an employment relationship with the Northeast and are free to negotiate whatever terms they and their employers find acceptable. 

Regardless of whatever laws the Senate might pass regarding the collective bargaining process, individual employers are entitled to negotiate terms with their employee union groups.  The right to collectively bargain works both ways - employees are able to join unions and negotiate on their behalf, and employers are entitled to negotiate with the union for employee services.  The relevant constitutional right is to collectively bargain, not for employees to unilaterally impose terms on their employers.  The Northeast, as employer, has as much of a right to bargain with its employees as any other employer.  That the Northeast is the government or has publicly set out the future contract terms it wishes to see in the next contract is as irrelevant as if a unionized widget maker made it clear he wants union concessions when the next widget making contract comes up for renegotiation. 

Nothing has changed with the current contract situation.  UNEPSE should live up to its bargain.  Since they are not doing so, they should be liable for damages.  The GM has stated that the Northeast is losing $30 million per day due to the strike.  Since the other party to the contract, UNEPSE is in clear breach, as CJO RowanBrandon found, it should reimburse the Northeast for its costs.

Thank you.

[Purple State]

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Regarding whether the Regions may fill in the gaps of labor laws in Atlasia, I argue that the Constitution explicitly relegates this power to limit that right exclusively to the Senate, stating, "with such exceptions as the Senate may provide for by Law on the grounds of vital national interest." While the Regions may provide for enhanced structure in labor relations, they cannot limit that ability.

As for "right to organize" versus "right to bargain collectively," I misspoke in using that term. My main point is not that the Union has a right to bargain collectively, but it does have the right to organize for such purposes. I argue that this does not mean only the right to form unions, but also the right to organize in a strike in order to push for collective bargaining. I ask that the Court view all previous mentions of the "right to bargain collectively" in my brief as following in this vein.

I should note that the bolded portion was recently stated by the unanimous decision of the Court in JBrase v. Atlasia, in which the author, A.J. Marokai Blue stated:

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While a region may not "subvert" federal law per the Supremacy Clause, it is also unconstitutional for a region to act on a matter over which the Senate has "exclusive authority" by the Constitution.

[cinyc]

Again, with respect to counsel for UNEPSE,  the Northeast did not pass a law of general applicability to all unions in the Northeast.  If it had, perhaps the Senate's role in passing labor laws might be relevant.  

Instead, the Northeast passed a law generally setting out the terms it would like to see in future contracts with its own union employees.  That's a huge difference.  Nothing in the Atlasian constitution could be read to prohibit the regions from collectively bargaining with their own employees.  The supremecy clause isn't relevant here.  The Senate does not have exclusive authority to negotiate with regional employee unions.

[Marokai Backbeat]

In formulating my personal views of this case for the other Justices, I've had a hell of a time figuring out clause 5. Cinyc, please explain the following clauses and what they do out for me more clearly. (Clause 5 is poorly worded, who wrote that dreadful paragraph for goodness sake?)

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[cinyc]

In formulating my personal views of this case for the other Justices, I've had a hell of a time figuring out clause 5. Cinyc, please explain the following clauses and what they do out for me more clearly. (Clause 5 is poorly worded, who wrote that dreadful paragraph for goodness sake?)

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I wrote it.   It's missing a "union" after public employee on the second line.

If placed in future public employee contracts, Section 5 would affirm the Northeast - and Atlasia's - commitment to be a right-to-work region, where public employees need not join a union if they don't want to while remaining entitled to the same employee benefits as any union employee.   The second sentence provides that we'd expect future public employee contracts to state that unions must allow non-union employees to gain access to any fringe benefit arrangement negotiated with the Northeast.  For example, if the Northeast thought it would be cheaper for the unions than the government to provide dental care plans and subsidized union dental care plans (though an out-and-out subsidy or employee withholding), non-union government employees would be able to buy into the union dental care plan at the same cost as a union employee members.  Think of it as the price the union must bear for getting a fringe benefit subsidized by the government. 

Section 6 says that we're going to negotiate future contracts to include a clause that disallows dues withheld and paid over to the union by the Northeast government from being used for political activities.  If the unions want to start a PAC, they shouldn't force their members, who may disagree with their political endorsements, to contribute.  The second sentence provides that the public employee unions can't penalize a member who refuses to contribute to a union political fund - by taking away their right to vote in union elections, their right to participate in a fringe benefit program, or otherwise.   All political contributions to a union PAC should be completely voluntary.

Both sections are waiveable by a vote of the Assembly and assent of the Governor if the union balks at including them in future contracts.  Like most of the bill, Sections 5 and 6 provide the FRAMEWORK for future union negotiations, not necessarily what will end up in our public employee contracts after we sit down with the unions to negotiate new contracts.

[Marokai Backbeat]

Ah, so Section 5 is as I feared, then. It removes any incentive to join a union in an effort to marginalize them. Very well then.

Section 6, too, is as I feared, as it seems the Northeast region is determining, yourselves, union procedures.

Thanks for clarifying.

[cinyc]

Ah, so Section 5 is as I feared, then. It removes any incentive to join a union in an effort to marginalize them. Very well then.

Section 6, too, is as I feared, as it seems the Northeast region is determining, yourselves, union procedures.

Thanks for clarifying.

Section 5 does nothing of the sort.  It empowers public employees to decide for themselves whether they want to join a union.  It removes the ability for a union to coerce public employees to join a union through closed shop nonsense (which is already illegal in Atlasia under federal law, I believe) or by withholding employee benefits that employees would otherwise be entitled to as a condition of employment but for the fact that unions have negotiated government subsidies or withholdings to run the employee benefit programs themselves.  It does not apply to a fringe benefit that a union provides without public subsidy or withheld funds.  IF we can successfully negotiate the provisions with the union, no longer will it cost public employees to decide not to join a union.

The right to assembly includes the right NOT to assemble.  Coercing people to join unions is as offensive to the right to assembly as not allowing unions at all.  Closed shops and forcing public employees do without fringe benefits that they otherwise would be entitled to in order to force people to join unions against their will violate that right.  

And unions will still have benefits to attract membership even if we successfully negotiate the provisions of Section 5 into contracts - for example, having someone to argue for a union member when he or she is fired, having someone to negotiate contract terms on their behalf and creating voluntary benefit plans fully paid for out of non-withheld dues.  Unions can provide added benefits as long as the Northeast need not pay for them unless those benefits are made available to union and non-union Northeast employees alike.

Section 6 does NOT determine union procedures.  It merely says that no money withheld by the Northeast can be used for union political activities.  It also provides that unions may not discriminate against those who do not want to contribute to union political activities by doing things like withholding negotiated fringe benefits from those who refuse to contribute or taking away their right to vote in union elections.  And again, it is subject to change after negotiation with the unions. All Sections 5 and 6 do is provide a framework for future public employee union negotiations in a game that otherwise doesn't have a way for creating such a framework.

[Purple State]

I believe what the Justice means is that Section 5 creates an environment for a "free rider" dilemma to emerge, in which there is no incentive to join a union if one benefits equally from the union's activities without paying the costs of dues. However, this inevitably undermines the relative bargaining power of the union, thus reducing the benefits gained from unionization. Lower benefits produce fewer and fewer that wish to pay the costs, further undermining the ability of the union to bargain effectively.

If I am reading Section 5 correctly, you are specifically enshrining a vicious cycle which will inevitably infringe upon the right of workers to organize for the purposes of collective bargaining, albeit indirectly.

[cinyc]

I believe what the Justice means is that Section 5 creates an environment for a "free rider" dilemma to emerge, in which there is no incentive to join a union if one benefits equally from the union's activities without paying the costs of dues. However, this inevitably undermines the relative bargaining power of the union, thus reducing the benefits gained from unionization. Lower benefits produce fewer and fewer that wish to pay the costs, further undermining the ability of the union to bargain effectively.

If I am reading Section 5 correctly, you are specifically enshrining a vicious cycle which will inevitably infringe upon the right of workers to organize for the purposes of collective bargaining, albeit indirectly.

There is no free rider issue.  People who want the union to represent them in contract negotiations will join and get whatever pay scale and protections the union negotiates for them.  People who do not want to join the union will not - and will be at-will employees of the Northeastern government without benefit of whatever protections and pay scales the union negotiates for its members.  All Section 5 does - if implemented in contract negotiations - is prevent the union from using Northeast funds or withheld dues to create fringe benefit programs that aren't also available to non-union employees in similar positions who want it.  The union is free to create something like a dental plan for its members as long as it doesn't get a subsidy from the Northeast or involve the Northeast government in withholding salary to force its members to pay for it.

Absent Section 5, you create a vicious cycle which inevitably infringes on the rights of employees not to associate with a union in what's supposed to be a right-to-work country.  There's no right-to-work if the union can withhold benefits indirectly paid by the employer from those who do not wish to join it.

[opebo]

The Court finds in favour of the appellant, The Union of Northeast Public Service Employees.   The court finds that the right to strike and/or the right to collectively bargain exists fully within the right to organize.  Laws which restrict the right to strike must be considered unconstitutional (Article VI section 10), and thus punishing the UNPSE for striking as the lower court does (by fine) is invalid.  The union's strike invalidates the contract, but the constitutional protection of the right to organize (and strike, an essential part of that right) disallows any state action to either force them back to work or to exact recompense for the 'breach of contract' striking is claimed to be.

A useful analogy is that no one may contractually engage themselves in servitude.

The decison of the lower court is vacated. 

So ordered,

J. Opebo, joined by J. Marokai Blue.

[Rowan]

Shocker.

[Sam Spade]

From the CJ's desk:

There will be a concurrence in part, dissent in part and probably a concurrence in the judgment of the Court coming in a few days, but not today (too busy).

[cinyc]

As CJO RowanBrandon said.  Shocker.  Well, if the contract is invalidated, I guess the Northeast can fire them all.  That's SO much of a better remedy.

So much for trying to play a game where union contracts would actually be negotiated.  Unions can breach contracts at will, so they aren't worth the paper they are printed on.  So why bother?