Guest Post: We Need An Attorney General Who Works for Workers (Parts 1 and 2)

Raph Graybill speaking with IAFF Local #8 at the Annual Montana State Council of Professional Fire Fighters in Helena.

This Labor Day weekend I wanted to do something different.

We already know that unions built the American middle class and fought to protect our rights in the workplace. This Labor Day weekend, to honor all the work done by our unions, let’s dive deeper.

To see just how important this fight is, we need to look closer at the ways our legal system has been turned against workers and unions — and how we can fight back by taking back the Attorney General’s office.

Here is the first of a short, three-part series examining recent court decisions highlighting the coordinated attack on American unions.

Knowing what’s happening is just the first step. We need a government whose chief lawyer works for workers, not against them. The Attorney General must be the stopgap against attacks by anti-worker politicians.

It’s why we need to win back the Attorney General’s office in 2020.

Part 1 — Locking workers out of court; keeping workers divided.

In recent years, powerful special interests have tried to force workers into signing their rights away — by forcing workers into ‘individual arbitration agreements.’

Unions are important for protecting the rights of workers and stopping unfair labor practices. But if workers can’t enforce their rights in court, the protections we have may not matter.

“Individual arbitration” is like a private court: a private decision-maker gets paid to resolve a dispute. None of the protections given to workers in regular, public courts apply. And the big corporation that forces a worker to arbitrate is often the one paying the decision-maker! It’s fundamentally unfair and it’s rigged against workers.

The basic premise of American labor law is that workers have a right to work together, to stand up to unfair practices using their collective power. Forced arbitration agreements undo all of that. They’re wrong. Even worse, these forced “agreements” prevent workers from protecting their rights as a group — workers are required to pursue claims against their employers individually.

During the Obama Administration, the National Labor Relations Board (a government agency that makes decisions about labor law) held these arrangements violated federal labor law because they stifled organized activity by workers.

Federal courts across the country backed the Obama Administration’s decision and rejected challenges brought against the rule by anti-union activists. The courts held that locking workers out of court and requiring workers to fight alone is against our labor laws.

But the United States Supreme Court, in a 2018 case called Lewis v. Epic Systems, ruled for big businesses and against workers — making these unfair agreements perfectly legal under federal law across the country.

That’s where things stand today. But it’s not the end of the story. State officials can still examine when these agreements are being used in egregious ways to cover up illegal activity against workers. That’s why it’s important that our state officials tasked with enforcing the law (1) understand the subtle landscape that has been carved out against workers and unions and (2) have the skills and conviction to fight for the right to organize and against unfair labor practices.

That’s why I’m running for Attorney General: because it’s time we have an Attorney General who works for us.

Part 2 — The U.S. Supreme Court’s attack on public sector unions.

The very first public-employee labor agreement in America was negotiated in Butte, Montana in 1935 by the Butte Teachers Union, AFT Local ?332. Since then, Montana has had a proud history of strong public sector unions and labor peace.

But nationally, a coordinated campaign by conservative activists has sought to undermine the very structures that make public sector bargaining and labor peace successful.

Just recently, the U.S. Supreme Court heard a challenge to what are called ‘agency fee arrangements’ — the small amount employees in a unionized position have deducted to cover the cost of collective bargaining and the associated benefits. The case is called Janus v. AFSCME.

These deductions are an important part of ‘agency shop’ arrangements: collective bargaining results in important gains for workers, but it’s not inexpensive or easy. It requires collective resources.

I signed a brief on behalf of my client, Governor Steve Bullock, urging the Supreme Court to reject the challenge to agency fees.

We told the Supreme Court not to overturn decades of successful practice. Montana had a unique story to tell the Court: our early history of labor unrest gave way to peaceful labor relations — something we cannot take for granted — in part due to the power and effectiveness of ‘agency fee’ arrangements.

Despite this history and the need to defend Montana’s labor peace and current laws, the Montana Attorney General sat the case out.

Unfortunately, the activist forces that brought the case won. The Supreme Court, in a disastrous decision, held that the FIRST AMENDMENT — of all provisions — allowed for freeloading and prevented mandatory agency fees.

The Janus decision was bad for public sector unions on its face. But unions across the country, including in Montana, have been active in reinvigorating their members, and maintaining and growing member rolls.

The defeat before a conservative Supreme Court was disheartening, but the response by unions in Montana is inspiring.

It also highlights just how important it is to have an Attorney General who isn’t just a friend to labor through words or at election time. It’s important to have an ally who’s willing to go to court — to take it all the way and actually do the hard work themselves — to protect the labor peace that our predecessors in Montana worked so hard to secure.

That means looking down the road, seeing anti-union activism and its stealth tactics for what they are, and taking on tough cases where it’s all on the line.

That’s why I’m running for Attorney General. I know this fight. And it’s time for our Attorney General to get in this fight and work for us.

Part 3 to come soon.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.

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About the author

Raph Graybill

Raph Graybill is a Democratic Candidate for Montana Attorney General. He was born in Great Falls and is currently Governor Bullock’s Chief Legal Counsel.

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