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INEQUALITY & UNFREEDOM/Gorsuch’s Epic Systems and the Trump Epoch: Denial of Socio-Economic Reality and History & Refusal to Recognize the “Concerted Action” “Elephant in the Room”

  1. SCOTUS Ignoring Reality in Lochnerian Revival

Even Gorsuch’s[1] “statement of the issue” is fictive, having installed as false premise that the basic controversy concerns enforceability of employee “agreements” with their employer.  As a matter of socioeconomic reality and historical fact, no employees voluntarily contract with their employers to relinquish their right to jury trial or class action litigation of disputes with their employer.  Such fictive premise is, indeed, a stage construction of our oligarchically-puppeteered Supreme Court in this neo-Lochnerian revival period.  Gorsuch’s language and tone, albeit overladen with repetitions, conversationalisms, and “reaches” toward “commoners’ metaphors,” betray yet another Scalia-esque denigration of “the masses,” whose civil rights, in telling decisional prose, are reduced by Gorsuch to a “Section 7 mousehole.”[2]

As Gorsuch would write, “how to begin…”  Let’s look at individual component garments of the “emperor’s new clothes” designed by Gorsuch.

  • He draws inferences from Congress’s “failure,” in promulgating the NLRA, as well as the NLRB’s initial failure, to address predispute mandatory employment arbitration agreements, with collective action waivers (“MPEAACAW”)—yet, these did not materialize until several decades after the NLRA came into effect, as the dissent discerns, in response to SCOTUS’s magnification of the FAA.


  • As is the “wont” of “wanna be” Scalias, and as though MPEAACAW were standard mercantile contracts between businesses of equal measure (such as contemplated by the FAA), Gorsuch ad nauseum alludes to plaintiff-employees’ “entry” into “agreements” with employers to waive jury trial and collective action rights.
  1. Statutory Perversions: NLRA and FAA

Thus, Gorsuch pits a severely reductionist view of the NLRA (addressing only the currently moribund traditional unionization) against a distortingly expansionist view of the FAA.  While he perverts the FAA to encompass phenomena nonexistent at its time of passage (MPEAACAW), Gorsuch oppositely perverts the NLRA not to apply at all to current manifestations and realities of modern employment relationships.

  • Among Gorsuch’s fictive constructs is the one that totally ignores the “savings clause” of the FAA upon which the Ninth Circuit in the Epic Systems companion case, Morris v Ernst & Young, the 7th Circuit in Epic Systems itself, and also the Epic Systems’ dissent by Justice Ginsburg, all rely to easily harmonize the NLRA and the FAA as to the dispute before them. Per the straightforwardly legal reasoning setting forth the 9th and 7th Circuit decisions, as well as the Epic Systems dissent, quite simply, collective action bans or “waivers” comprise illegal “unfair labor practices” under the NLRA, a species of “yellow dog contract,” hence, fall squarely within the FAA’s savings clause.  The judicial analysis in these decisions, honoring statutory text, legislative history, and public policy, starkly realizes “the emperor’s nakedness through his new clothes.”

Gorsuch “protests too much” such “cogent” application of the savings clause.  Thus, prefacing his objections with a trio of “Put to the sides…,” Gorsuch “concludes” that the savings clause cannot apply here because, in Scalia-land, the notion of the illegality of a “yellow dog contract” (prohibiting workers’ collective action to equalize forces with employers) “targets arbitration.”

  1. In Service of Corporate Masters

Here, of course, with near-Biblical flourish, Gorsuch invokes Scalia in Concepcion[3] (“we know this much because of Concepcion”).  Gorsuch, as did Scalia, here expansively overreaches in concocting the elastic notion of “targeting” via such “subtle methods” as “interfering” with alleged arbitration “attributes,” chiefly, such generic traits as “simplicity,” “informality,” “speed,” and “efficiency,” notably, thereby, generating more risk for employers.[4]

In rejecting application of the savings clause to the “yellow dog” collective action bar, and in contrast to his blindness to the stark absence of employee consent in such arrangements as the MPEAACAW, Gorsuch “of a sudden” focuses upon the notion of a party’s necessary actual consent to an arbitration agreement, in hearkening to “Concepcion’s essential insight..[that] a contract defense [may not] reshape traditional individualized arbitration by mandating classwide arbitration procedures without the parties’ consent. [citations omitted].”  In true Lochnerian doublespeak, Gorsuch “celebrates” Concepcion’s expansionist arbitration teaching “that we must be alert to new devices and formulas that would achieve [equivalence to pre-FAA judicial antagonism against arbitration] today,” while correspondingly restricting and restraining the scope of substantive NLRA Section 7 workers’ rights of mutual aid and protection to a proverbial “mousehole.”  As far as Chevron deference to the NLRB, the Lochnerian prejudice against such agency is evinced by Gorsuch’s cutting reference to the NLRB as purporting to ascend to a position of “supreme superintendent of claims arising” where workers act collectively in pursuit of mutual aid or protection even under statutes it does not administer.

  1. Forsaking the Law

Notwithstanding that the critical differentiation between “substantive” and “procedural” rights is directly and extensively addressed in the 9th and 7th Circuit opinions in Morris v. Ernst & Young and Lewis v. Epic Systems, (such tenet, that “substantive rights cannot be waived in arbitration agreements,” of course, being “a fundamental component of the Supreme Court’s arbitration jurisprudence,”) one would search Gorsuch’s opinion in vain for either a recognition of this distinction or an explication as to how such distinction necessarily factors into a principled judicial outcome; indeed, Gorsuch actually and erroneously alludes to workers’ collective litigation as merely a matter of “procedures.”  Gorsuch even goes so far as to misrepresent the Supreme Court’s 1978 holding in Eastex Inc. v. NLRB in denying that Eastex is precedent “that [NLRA] Section 7 guarantees a right to class or collective action procedures.”

As noted by Chief Circuit Judge Diane Wood in the 7th Circuit’s decision in Lewis v. Epic Systems, the Supreme Court in Eastex expressly held that the phrase, “other concerted activities,” as used in Section 7, has “long been held to include ‘resort to administrative and judicial forums.’”  As written by Chief Judge Thomas in the 9th Circuit’s Morris v. Ernst & Young decision, Eastex and abundant other judicial precedent clearly enunciate “a well-established principle: employees have the right to pursue work-related legal claims together.  29 U.S.C. Section 157; Eastex, Inc. v. NLRB, 437 U.S.  556, 566…(1978).  Concerted activity- the right of employees to act together- is the essential, substantive right established by the NLRA.” [emphasis in original]

The desperately absurd ejusdem generis ploy by Gorsuch (and the SCOTUS majority) to unduly restrict the scope of Section 7, contrary to express legislative history and congressional purpose, would be humorous, were its bogus nature not demonstrative of the Court’s corruption and its impact not to seriously exacerbate our polity’s socially and politically corrosive wealth inequality.[5]  As Ginsburg notes in her dissent, “…the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees ‘to band together in confronting an employer.’  NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 834 (1984); ” also, “There can be no serious doubt that collective litigation is one way workers may associate with one another to improve their lot” and only SCOTUS’s own recent “exorbitant application of the FAA” gave rise to the MPEAACAW, the contemporary yellow dog permutation.  Gorsuch’s opinion is deafeningly devoid of reference to either the nation’s labor history or, particularly since Citizens United, the nation’s increasingly oligarchical structure.

  1. Call to Integrity & Action NOW

So, as of yesterday’s demise of “net neutrality,”[6] I close this “blog installment” on the Epic Systems trilogy (studied while scouring Snyder’s new tome) cognizant of this very moment in time (Trump disrupting the G7 while inviting Russia to join, Mueller investigation yet pending), very much aware, as Snyder puts it (supra, 12), that “This is all one history, the history of our moments and our choices.”  [Emphasis supplied]

[1] Of course, one could observe, Gorsuch is not even properly seated on the Court.  The Republican Senate’s unprecedented refusal to consider Obama’s nominee, Merrick Garland, to our supreme judiciary naturally was exploited by Russia which then initiated the cyberwarfare that made Trump our chief executive.  Timothy Snyder, The Road to Unfreedom: Russia, Europe, America (Tim Duggan Books, NY 2018), pp. 219 and 255 (“Trump was the payload of a cyberweapon, meant to create chaos and weakness, as in fact he has done.”)

[2] Trump could not have found a better man to match Trump’s sadopopulism on the Court than Gorsuch, infamous for his circuit court decision that the employer’s termination should stand for a worker who “abandoned” his disabled truck so as not to die in freezing cold. Cf. Snyder’s “coining” of the term “sadopopulist” to depict Trump’s regressive tax policies and attacks on domestic programs including health care. See, Snyder, supra, 271-273.

[3] See, e.g., Jill I. Gross, Justice Scalia’s Hat Trick and the Supreme Court’s Flawed Understanding of Twenty–First Century Arbitration, 81 Brook. L. Rev. 111, 145-146 (2015) (Gross notes, “the Court’s view of arbitration in its opinions since the 1980’s is not based on reality,” by ignoring actual 21st century arbitration practice, SCOTUS is able, among other things, to “appease corporate interests…and suppress claims of individual consumers and employees.”)

[4] Republican veneration of the corporate form which sustains the oligarchy has infested all three branches of the U.S. government, especially with the “bumpstock” of SCOTUS’s Citizens United ruling in 2010.  See, e.g., Justice Stevens’s dissent thereto (“The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.…The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation.  The path it has taken to reach its outcome will, I fear, do damage to this institution….Only the most wooden approach to the First Amendment could justify the unprecedented line [the majority] seeks to draw…..The majority…rejects the anticorruption rationale without serious analysis….The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it….When citizens…hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy…The predictable result is cynicism and disenchantment.”). [Emphasis in original] Justice Stevens’s depiction of the majority approach in Citizens United, “blinkered and aphoristic,” applies as well to SCOTUS’s approach in the Epic Systems trilogy.  See also Snyder, supra, 249 (“Democracies die when people cease to believe that voting matters. The question is not whether elections are held, but whether they are free and fair.”)

[5] “…[R]ising inequality elevates political fiction…”  Snyder, supra, 10-11. “At the top and throughout society, material inequality creates the experiences and the sentiments that can be transformed into a politics of eternity.”  Ibid., 258.  A “politics of eternity” is a phrase coined by Snyder used in opposition to a “politics of inevitability.”  In a “politics of eternity,” “[t]ime is no longer a line into the future, but a circle that endlessly returns the same threats from the past…In power, eternity politicians manufacture crisis and manipulate the resultant emotion….Using technology to transmit political fiction…, eternity politicians deny truth and seek to reduce life to spectacle and feeling.” Ibid., 8.

[6] “The capitalist version of the politics of inevitability, the market as a substitute for policy, generates economic inequality that undermines belief in progress.  As social mobility halts, inevitability gives way to eternity and democracy gives way to oligarchy.  An oligarch spinning a tale of an innocent past, perhaps with the help of fascist ideas, offers fake protection to people with real pain.”  Snyder, supra, 15.