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PaperclipPerfector  7mo ago (text post)   26578 thread views

Culture War Roundup for the week of September 4, 2023

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Not an effortpost, just a casual summary of a court case in which people may be interested:

  • Audrey Stone was a Southwest flight attendant, and also the president of the flight attendants' union. In her capacity as union president, she attended an pro-abortion protest and at that rally implicitly represented all the flight attendants at Southwest. Specifically, she carried signs with the Southwest logo on them, and the expenses of union members who attended the protest were paid for using union funds.

  • Charlene Carter was another Southwest flight attendant, who had left the union several years prior and was in active opposition to the union (including leading a recall campaign against Stone). She was opposed to abortion, and therefore was angered by Stone's implicit representation that all of Southwest's flight attendants were in favor of abortion. On Facebook, she sent to Stone various anti-abortion messages, including graphic videos of aborted fetuses.

  • Stone complained to Southwest, which fired Carter for "representing our company in a manner that is disparaging to Southwest Flight Attendants". An arbitrator confirmed that the firing was supported by "just cause" under the applicable collective-bargaining agreement.

  • Carter (1) sued the union for failing to properly represent her in the complaint process, (2) sued both the union and Southwest for retaliating against her due to her protected speech (both union-related and religion-related), and (3) sued both the union and Southwest for discriminating against her due to her religious beliefs. A jury agreed that all of these charges were valid, and awarded to her millions of dollars in damages. Due to federal law, the judge capped the damages at 600 k$ in compensatory and punitive damages, 150 k$ in backpay, and 60 k$ in pre-judgment interest.

  • On the basis of the jury verdict, Carter also asked for an injunction (1) reinstating her to her former position, (2) forbidding Southwest from violating its flight attendants' rights to religious speech and union-related speech in the future, and (3) requiring Southwest to inform all its flight attendants of item 2, including an explicit mention of Title VII (which protects religious speech). The judge granted the request. Southwest apparently asked for some parts of the ruling to be stayed pending appeal, but it did not ask for part 3 to be stayed.

  • Southwest then openly defied part 3 of the judge's ruling, and instead sent to all its flight attendants a message (1) stating that Southwest would continue to enforce its policies and (2) failing to mention Title VII. Accordingly, Carter moved that Southwest be held in contempt of court.

  • The judge investigated, and found that the memo circulated to the flight attendants was drafted by one of Southwest's in-house lawyers (Kevin Minchey), who obviously should know better than to willfully defy the judge in this manner.

  • Therefore the judge: (1) told Southwest to distribute a specific message verbatim, without edits, in order to comply with part 3 of the ruling; and (2), as sanction for this willful disobedience of the court's order, required three of Southwest's in-house lawyers (including Minchey), as representatives of Southwest itself, to undergo at least eight hours of religious-liberty training conducted by a representative of the Alliance Defending Freedom, since the lawyers obviously don't understand religious-liberty law properly.

Relevant court documents:

The Washington Post complains that "Southwest had a constitutional right to issue a memo expressing its disagreement with the jury verdict". The judge's response to this argument is: Speech can be compelled by the government as long as it is narrowly tailored to serve a compelling government interest. Making sure that Southwest's flight attendants are aware of their rights under Title VII is a compelling government interest, and the message that the judge is forcing Southwest to send is as narrowly tailored to that interest as possible. Also, the message ordered by the judge is significantly less objectionable than the longer notice (including an apology) that Carter originally asked the judge to force Southwest to send.

The Washington Post complains that "subjecting lawyers to training by an ideological advocacy group such as ADF", rather than "by accredited law schools", is "ludicrous". But the judge points out that ADF has won multiple Supreme Court cases on the topic of religious liberty in recent years, so it obviously is well-qualified to conduct a training session on that topic.

One thing, or rather a couple closely related things, I don't understand. If Carter left the union, how would she still fall under their CBA, and why would they be expected to represent her? Seems like she wanted to have her cake and eat it too. These are exactly the things she'd be voluntarily giving up by choosing not to be part of the union.

Honestly I'm surprised leaving the union is even something you *can *do at SWA - most workplaces I'm familiar with are either unionized or they're not, and in the former case you either belong to the union or you don't work there. Or maybe that statement was misleading? What exactly is meant by "had left the union several years prior" here?

Honestly I'm surprised leaving the union is even something you can do at SWA—most workplaces I'm familiar with are either unionized or they're not, and in the former case you either belong to the union or you don't work there.

Presumably, Southwest is not a "union shop".

Quotes from the complaint:

Although she became a member of Local 556 upon employment with Southwest, Carter resigned from membership in Local 556 on or about September 29, 2013, and exercised her RLA rights under Ellis v. Bhd. of Ry., Airline and S.S. Clerks, Freight Handlers, Express and Station Emps., 466 U.S. 435 (1984), to object to paying the union’s compelled fees for its political, ideological, and other nonbargaining spending. Since that date, Carter has remained a nonmember objector.

 

Under the [Railway Labor Act], a union acting as the exclusive representative of a craft/class of employees owes a fiduciary duty of fair representation to all of those employees that it represents, members and nonmembers alike.… Steele v. Louisville & N. R. Co., 323 U.S. 192 (1944)…

Quote from the second cited Supreme Court opinion:

So long as a labor union assumes to act as the statutory representative of a craft, it cannot rightly refuse to perform the duty, which is inseparable from the power of representation conferred upon it, to represent the entire membership of the craft. While the statute does not deny to such a bargaining labor organization the right to determine eligibility to its membership, it does require the union, in collective bargaining and in making contracts with the carrier, to represent non-union or minority union members of the craft without hostile discrimination, fairly, impartially, and in good faith.

Okay, seems weird to me, and I'm reasonably sure that's not how it would work here, but clearly there's settled law on this in the US. TIL.

The judge's response to this argument is: Speech can be compelled by the government as long as it is narrowly tailored to serve a compelling government interest

So does this mean that companies can be compelled to post false warrant canaries? Or is the interpretation narrower than that / limited to compelled truthful speech?

I don't think there's anything new here. I'm quite certain that there's a long history of courts ordering employers to inform their employees about their rights regarding things like unionization, racial discrimination, sexual harassment, etc.

Yep, the break room or lunch room at pretty much every office I've worked at has posters of all those things, required by law.

I hate that this is framed as a freedom of religion issue. So I may publicly disagree with the woke Jacobins without fearing reprimand as an employee as long as my dissent lines up with the teachings of another cult?

Yes. If you talk about being in favor of abortion, say, and you are fired for explicitly that reason, you can absolutely sue.

I doubt most companies will be that dumb in practice, which also seems to be Southwest's main issie here: they lack the finesse to lie and had ideologues break the law without any requisite fig leaves.

I think your abortion stance would have to be informed by sincerely religious belief though, wouldn't it? It couldn't just be secular pro-natalism.

It would seem so, yeah.

Note that Carter also won on several union-related counts, not just on religion-related counts.

I think the question of when one’s speech begins to represent the opinion of an organization or otherwise stops being simply your own touches both this and the Peterson Social Media case. In both, the question is when are you speaking in behalf of your organization. I think there needs to be something done to give people clear lines because it’s really an end run around free speech at this point. All I need to do is have you always represent your work and then your speech in no longer protected.

Interesting case. Now I disagree with unions (in most cases) and I believe you should be allowed to fire someone because they are a Christian and vice versa or because they have a skin color you don’t like.

But since there is a union involved I definitely think special protections should be involved. The flight attendant can’t bargain for herself and work in her chosen profession. It’s not a free market. It’s already at its core a coercive relationship where she’s forced to join the union.

Stones her union rep by government force. So she certainly should have to deal with the complaints of her constituency. Without knowing all the legalese here it feels like this was decided correctly.

But a core part of this to me comes from unions only existing because of government violence. Otherwise they wouldn’t exists.

There are a small amount of unions that would freely appear without government. Construction is one potential area as project may be short-lived and both sides of the transaction would prefer to work with an organization verifying worker quality.

The solution in a free market (works best when it’s a constant costs business like airlines and not firms with moats who can discriminate) would be for the wrong thinkers or wrong skin pigment bidding their labor cheaper than the right thinkers and the firm hiring the wrong thinkers makes more money.

But a core part of this to me comes from unions only existing because of government violence. Otherwise they wouldn’t exists.

Apart, as someone else has pointed out, being kind of meaningless since corporations only exist because of government violence too, it's also rather unhistorical. During the initial phase of the emergence of unions in Britain they were banned under the Combination Act 1799 - an odd thing to do if unions only exist because of positive government action. They often persisted in spite of such legislation in the form of friendly societies and the like. Even today in most of the West unions have at least many restrictions on their behaviour as they do protections.

Corporations would exists without government violence. And historically there are examples of them happening like basically any long distance trade. Where a group of people wanting to share risks in the enterprise.

Trade might happen without government violence (though they would still be involved in protecting the property of those engaged in trade), but the corporation as it exists in modern America is absolutely the product of government intervention, especially in terms of creating the necessary legal infrastructure for things such as limited liability companies. In addition government intervention assists corporate activity via patents and trademarks, regulation of union activity and most of all creating the peaceable environment that allows their private property 'rights' to have any meaning at all.

Why couldn’t limited liability corporations exists without government?

If I buy consumer product from “Y” there is a risks the product fails and I get hurt etc. But I could still see public disclosures on their equity risks and see that the loss to shareholders is limited. So if I buy a car from them and the brakes fail killing my daughter I still contracted for that risks and as the consumer would realize I can’t sue them for full value.

because limited liability for tort victims only exists with state intervention

limited liability against consumers, creditors, employees, other known parties, could all be done by mutual agreement, but limited liability to third parties, e.g., someone who is killed by one of the corporation's drivers, can only exist with state intervention

to see how clownish this can get, check out some of the horror stories related to people who are injured by cabs: driver has no money, car is owned by one company, taxi medallion owned by another company, and only $20,000 (probably different now) insurance policy is required

So if I buy a car from them and the brakes fail killing my daughter I still contracted for that risks and as the consumer would realize I can’t sue them for full value.

you may have agreed to the risk, but the claim would rest with your daughter, for which you likely have a survivor claim wrongful death lawsuit on her behalf, even if we agreed you had signed away your "rights" by buying the product

I'm sure we could come up with a hypo to avoid this issue and I only mentioned this because it reveals a third party innocent who has not agreed to limited liability.

Can agree unrelated third party issues would exists.

The job of the union is to represent the rights of the workers when bargaining with employers. Unions have little to no business advocating for anything outside that. The airline, too, seems to have tacitly agreed that it was pro-abortion by letting the union rep use their logo.

I think we all know what would have happened if Ms. Carter had tried using the airline logo or union funds to go attend a pro-life rally. Now, did she harass Ms. Stone online? That's debatable. Certainly I think she had a right to complain that what the airline tacitly supported was not the views of the entirety of the workforce, and that there was no justification for coming down on one side rather than the other.

I agree since I believed she used the word despicable. Though sending pictures of fetuses could just be considered educational.

As with FCfromSSC above, so too here: unions can exist without violence. A bunch of employees can agree to bargain together and walk out together if they'd so enjoy. The US may or may not deal with this very well, but that's the US' problem, not an issue with people in general.

A bunch of employees can agree to bargain together and walk out together if they'd so enjoy.

Sure, they can give up a vast majority of a union's powers and survive without government backing. Let's compare what a theoretical non-government-backed collection of employees could do relative to a union (under my local laws).

  • On inception, a collection of employees that got buy-in from 51% of the employees would consist of 51% of the employees. A union would consist of 100%. (Technically you have the ability to refuse membership, but you are forced to pay membership dues regardless.)

  • If the company doesn't like working with the employees (for whatever reason), it can fire them. If it doesn't like working with a union, it's stuck. Similarly, it can hire replacement workers if they stop showing up for work (It can also do that against unions now, but couldn't before 2008).

  • If the company shuts down its location, the employees get laid off. If the company shuts down a unionized location, then the union hold power over the vacant building and must be reinstated when someone else buys it.

Some type of unions being able to exist without government backing isn't much of an argument that the currently existing ones could. Heck, I'm not sure if your "bunch of employees [that] agree to bargain together" even deserves to be called a union.

I believe it, and I'm entirely open to believing that your local laws are poorly-written. Sliders' argument however is that this is intrinsic to unions, rather than poor lefislatoon, which is the source of my disagreement with him.

This feels like a reflection of Against Murderism.

My examples are central to the category (obviously, because they're mine) like UAW and CUPE, while yours are weird fringe groups that barely deserve to be in the same category. It's like arguing that taxation is theft, therefore theft is pro-social.

No! We're talking about a whole country here. By the time something grows to that size and can be observed for long enough of a time, they aren't 'weird fringe groups barely in the same category'. You can't just dismiss arguments because you happen to feel like they aren't similar enough. Some nations have X set of laws for unions, some nations have Y set of laws, you can look at them and figure out what works well. It may be that not all laws work for all people, that circumstances are different elsewhere, but then you'd have to argue that. Do so, rather than insist for no seeming reason at all that the Atlantic leads to a WILDLY different dimension where words stop having meaning.

I just read up on Dutch labor law, and one part stuck out at me:

[A collective bargaining agreement applies] if you are not a member of an employer’s organisation, but the Ministry of Social Affairs and Employment has declared a CAO binding to your sector;

That's about as far as possible from "a bunch of employees can agree to bargain together". At least in North America you can shut down your entire business and build a new one from the ground up (on different ground, of course) to escape your union. Dutch labor law is firmly in the realm of "If you don't like it, build your own government" rather than true free association.

Given that baseline level of coercion, of course the entities-which-the-Dutch-call-Unions look completely different than North American Unions: All of their most important functions have been outsourced to other entities, not removed as I had thought.

While I understand your point, in some sense taxation is the central example of theft.

How many people get robbed each year? How many get taxed?

How much money gets stolen? How much gets taxed?

Any examination of other forms of theft are basically looking at weird hobbyist fringe-thieves.

Then the airline would hirer different workers. Unions primarily only exists because the Gov gives them special rights. And if the employer violates those rights they sue and the government then uses violence at some stage of the dispute to enforce their ruling.

In my country for most unions at least joining is optional - I joined the union for retail workers when I was a retail worker, and in exchange for a small reduction in my paycheck (about the price of a single homecooked meal a month) I received access to a bunch of services provided by the union. I was happy to support it anyway because they'd also negotiated several really useful concessions and pay-raises. I haven't joined the union for my current industry because the last I checked it was captured by ethnic nepotists who believed that the best answer to falling wages and increased competition in the industry was to massively increase immigration of indian workers into the country.

I think the union was a net good - and companies could absolutely hire non-union workers, who were mostly travellers and students who took the job on a very temporary basis. Most workers just joined the union because it legitimately worked out to be a better deal for them, even beyond the additional negotiating power. I'm struggling to understand your opposition to unions here because the kind of organisation you're describing just doesn't have anything to do with the unions I've encountered in the real world.

Well American ones all promote things I think are awful.

From a broader point unions are bad for society but can be good for individual workers.

The best example in the US was when the big three automakers controlled the US market for cars before Japanese cars entered the market. Auto unions could negotiate hirer wages and since all 3 auto unions had to use auto union labor the automakers had the same costs which means they could all pass the higher autoworker wages on to everyone else.

You know who suffered? Every American who had to pay higher auto costs but didn’t work in a protected industry and couldn’t get similar wages. Everyone else losts.

There are places where unions don't get these special rights, and where they exist just fine. What gives?

Example? I gave one potential instance where the union provides worker training/quality standards for short term work.

Where do unions exists as you say?

I am most familiar with Dutch law, and passably so with Irish and Swedish law on the subject. Dutch law forbids employers from firing people for unionising(1), but does not get enmeshed in any negotiating that goes down. Sweden's laws on the matter are similar. Ireland does the same. The Netherlands and Ireland additionally have their laws written in such a way that unionising can never be required of someone; it is strictly that employee's choice. I don't know why I'd be opposed to this status quo, and it seems to work just fine.

1: This is not a special right, as Dutch law prohibits people from being fired for political association (and a lot of other stuff) in general. This may or may not be a good thing, but the right to unionise isn't at all special.

I define that as a special rights.

It means the employer can not choose to hirer a cheaper worker. If you can’t fire then you can’t hire someone else either.

It basically violates free association. Unless the employer can fire the unionized employees for not accepting the wages they are offering.

Unless the employer can fire the unionized employees for not accepting the wages they are offering.

Yes, of course that's possible. The law forbids employers from firing people for joining unions. It does not compel employers to do anything else, and they are free to laugh unionised sorts out of their offices when they dislike the terms.

More comments

But a core part of this to me comes from unions only existing because of government violence. Otherwise they wouldn’t exists.

...They can exist by private violence too, right? Like, a bunch of workers can band together and agree to break the legs of anyone who doesn't stand with them, right?

They can exist by no violence at all. For most of the early 19th century in Britain, the direction of violence was unquestionably from government and mill-owner towards unionist.

It seems to me that such organization, sans violence, requires a fairly high level of social cohesion to tamp down on defectors. maybe in the early 19th century, the workers really were cohesive enough that social shaming or other "soft" enforcement mechanisms could get the job done. On the other hand, maybe the violence then was simply informal and illegible. Either way, we're not that cohesive any more, and unions have what seems to me to be a well-earned reputation for playing dirty.

Well unions can/could reduce 'defection' both by securing sufficient benefits for their members that joining becomes rational anyway. If a union reaches a critical mass of membership where an employer can't really do without it in the short to medium term, a union can negotiate better terms that a non-unionised employee doesn't have the bargaining power to secure and if a certain size negotiate closed shop agreements with employers in a fully voluntary manner. Unions had no special legal protections at least until 1871 (and even then that's debatable, some would put it further forward in 1906).

Sure. Fundamentally they require violence at some stage to exists. Mafia would be the example of an organization that used those practices.

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