The Jeff Cumberbatch Column – An Unholy Alliance?

US Supreme COurt“What our cases say is that you can be compelled not to be a free rider… to pay for those items of bargaining that benefit you as well as everybody else…” –Justice Scalia (2014)

A general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice…” ILO Freedom of association Digest (4th rev. ed.)(1996)

Barbadians might not readily appreciate the extent to which a judicial decision on a point of constitutional interpretation is, essentially, an ideological exercise. In contrast, the USA context, where the Supreme Court is charged exclusively with the authoritative interpretation of the Federal Constitution, provides a clearer example of this phenomenon.

There, the ideological divide lies not purely in the jurisprudence of constitutional interpretation itself, but also in the ostensibly partisan political leanings of the judge. Hence there exists one branch of the Court that adheres to an “originalist” interpretation of the Constitution –that the text means precisely what the founding fathers would have intended it to mean, no more, no less. These are usually the so-called conservatives, (often nominated by a Republican President, although there have been some egregious exceptions to this).

On the other hand, the so-called liberal branch of the Court (usually nominated by a Democratic president) frequently espouse the view that the Constitution is organic and should be interpreted progressively in accordance with the modern ethos; situations that the founding fathers could not at all have contemplated.

Our Constitution, a document of comparatively recent vintage, is more closely drafted than, or rather not as broadly drafted as, its US counterpart. Hence, there is little room left for jurisprudential ideology in our system, although there may be some avenues for partisan political decisions under the guise of judicial restraint –where the judicial officer may refrain from deciding the issue on any constitutional ground at all-, or judicial activism –where the judge decides the matter in accordance with his or her perception of what the law ought to be. The current praxis, whereby local judges are in substance appointed by the governing political administration of the day and the actuality that constitutional issues inevitably involve the state as the respondent, together create the perfect storm for partisan considerations to influence a judicial decision in this area.

Nevertheless, happy to relate and to its credit, in my view, the local judiciary has, so far, been largely beyond reproach in this regard, although there may have been one or two decisions that might have caused quizzical eyebrows to be raised in both some lay and learned quarters.

On the US Supreme Court however, where the issue is far less opaque, the recent death and non-replacement (so far) of Justice Antonin Scalia, who might fairly have been regarded as the eminence grise of the conservative originalist-construction wing of the Court, has resulted in an equality of voices on either side of both ideological divides.

Constitutionally, this entails that the decisions of the courts below from which the matter has been appealed will remain in force. Hence, the attempt by the Republican-controlled Senate to prevent President Obama from having the current vacancy filled by his nominee thus, at least presumptively, placing the balance of judicial opinion firmly in favour of the liberal “progressive-construction” wing of the Bench.

There was one such outcome in the past week, where the Court was called upon to determine whether it was constitutional for a public service union to collect fees from workers who chose not the join the union and did not want to pay for the union’s collective bargaining activities. This issue may be of more than critical importance for the local public sector unions and public officers.

Under California law, and that of at least 20 other states, according to the New York Times, public employees who choose not to join unions must pay a “fair share service fee” also known as an “agency fee”; typically equivalent to the union dues paid by members. The notion is that these fees are meant to offset the costs of collective bargaining, including the cost of lobbying activities, from which these non-member employees also reap the remunerative fruits.

It had already been decided that government workers who were not members of the union, and even members, were exempt from paying for political activities of the union such as campaign contributions and spending since this would have been a violation of the First Amendment that restrains the State from compelling or restricting political expression.

The ultimate 4-4 division of the Court meant that the labour union’s argument that collective bargaining is not a political activity and thus not an element of political expression succeeded, as had been previously upheld in a 1977 Supreme Court decision from Detroit.

Given the relative poverty of local labour organizations nowadays, it bears consideration as to whether an identical result would not obtain here. Of course, this is all in the realm of speculation at this stage since the requirement to pay any fees at all by non-members would have to be the subject matter of statutory enactment, given the local constitutional guarantee of freedom of association. Certainly, given the strict partisan political divide in Barbados, there is little probability of any union, as an organization, financially supporting one party over another to the knowledge of its membership. This should be ordinarily left up to the individual member, so that the question of compelling political speech by the payment of union dues would scarcely arise.

However, it might someday be determined by officialdom that the concept of the “free-riding non-member” in unions is not at all to be countenanced. Would the consequent legislation to that effect be considered unduly restrictive of political expression? Or would it simply be a matter of enforcing the payment of the individual’s fair share for a benefit that others have negotiated in good faith?

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47 Comments on “The Jeff Cumberbatch Column – An Unholy Alliance?”

  1. David April 3, 2016 at 6:46 AM #

    Thanks for this article Jeff, top drawer.


  2. Caswell Franklyn April 3, 2016 at 7:13 AM #

    Since more people choose not to become members, trade unions find themselves in situations where there are unable to meet their operational expenses. Consequently, the unions resort to the employers for assistance which is recipe for disaster. They cannot take the employers’ money and then don’t concede when the employers insist. This is a feature of our trade union movement that is hardly ever spoken of.

    Since workers do not join that is the level of misrepresentation they suffer and use that as a pretext for not joining unions. Actually, by not joining unions, workers contribute to the poor quality of representation they receive.

    Of course there’s one beacon; Unity Workers Union does not seek nor will it accept contributions from employers.


  3. David April 3, 2016 at 7:15 AM #

    The question one must ask is why is there reducing membership? It seems fashionable not to join unions nowadays.


  4. Bush Tea April 3, 2016 at 7:20 AM #

    @ Jeff
    Philosophically, any such law that MANDATES all employees to pay union dues will, in the long term be progressive, and should be enacted by ALL Labour governments.
    Up to Bushie, this would be a NUMBER ONE labour priority – and it would not have to await any court decision …because Bushie would pass a SPECIFIC LAW to mandate it.

    It is the personal SELFISHNESS of many individuals who seek to benefit from union activities without making contributions to the cost AND OTHER INPUTS into that effort…that allows employers to exploit workers.

    If all workers have to join the damn union where they worked, then the elected ‘union councils’ would BETTER REFLECT the overall workforce …rather than the minority malcontents.

    If all workers HAD to join the union, then ‘negotiations’ would be far less confrontational because the lines between the various ‘parties’ would be far less divisive. We would then likely see ‘agreements’ that reflect much more openness, fairness and long-term growth for the organisation…

    Ok long story short….
    If the Law mandated such, then essentially our businesses would begin to look more and more like cooperatives… 🙂


  5. David April 3, 2016 at 7:24 AM #

    To entertain your position the idea the secretariats of the respective unions need to be overhauled.


  6. Jeff Cumberbatch April 3, 2016 at 8:01 AM #

    Thanks for your contribution, Bushie. Your proposal exists in those private establishments where there is a “closed shop”. This arrangement is unlikely in the public sector however.


  7. Bush Tea April 3, 2016 at 8:15 AM #

    @ Jeff
    This arrangement is unlikely in the public sector however.
    ….but only because we are short sighted in vision, and driven by materialistic (and not community-centric) motives.

    If we were ever to get some intelligent and open-minded individuals (such as yourself and some others that Bushie is tired of naming) to sit down and draw up a proactive, long-term, visionary strategy – designed to build a bright and productive future for this country, such initiatives would be easy to implement.

    But as you correctly say, this is impossible in a brassy environment….


  8. David April 3, 2016 at 8:33 AM #

    @Bush Tea

    Did you listen to Jeff waxing otorically on the 5:30PM news last week? Some thing about anti money laundering.

    Wonder if Jeff can tell us if we have imprisoned any Bajan on a money laundering charge.


  9. ac April 3, 2016 at 8:35 AM #

    First of all Unions are organisations and as such no govt can imposed any law on its populace to join any organisation be it a union or church or any damn institution that is privately owned or falls under guidelines that are uniformly constructed
    As usual Bush sh..t uses his verbal dictates govern by dictatorship leanings to coerce the gullible and unsuspecting in the BU classroom
    Govt role is to remain a neutral voice in private enterprises and remained committed to the rules of law that dictates and directs a society towards that which is fair and constitutionally right in a democracy


  10. Bush Tea April 3, 2016 at 8:39 AM #

    Oh ac piss off nuh!!
    You can’t see big people talking…?


  11. David April 3, 2016 at 8:42 AM #

    @Bush Tea

    You cant ignore?


  12. David April 3, 2016 at 8:54 AM #


    Do you agree with the deductible allowed by government of up $240 for subscription for trade union membership?


  13. Dompey April 3, 2016 at 9:11 AM #

    Yes, the Supreme Court is charged with the responsibility of interpreting the Federal Constitution. And it is the primary method of determining whether or not the laws enacted by the legislative branches of government concurs with the Federal Constitution. However, if a case that is brought before the court raises a question, the justices may decide that such law violates the Federal Constitution. But what most aren’t aware of is the fact that Congress then has the power to pass another law to override the court ruling to achieve its own end.


  14. de pedantic Dribbler April 3, 2016 at 9:19 AM #

    @Jeff, despite the fact that Supreme Court oral arguments do not determine any particular decision direction it is yet unequivocal that based on his standing as the “eminence grise of the conservative originalist-construction wing” and his tone in the oral arguments of this case that a 5-4 ruling was going to scuttle the union were it not for Justice Scalia untimely death..

    As a layman the fact that very intelligent men and women can look at the US constitution completed centuries ago and engage in high level rhetorical palaver which posits as you noted “–that the text means precisely what the founding fathers would have intended it to mean…”

    And fight their learned colleagues who offer agsin as you noted “… the Constitution is organic and should be interpreted progressively in accordance with the modern ethos; situations that the founding fathers could not at all have contemplated” is completely beyond my limited abilities.

    Mr Franklyn said on another blog that he looks at law first and foremost as English comprehension…and I smiled. And he could have added, commonsense.

    So that ruling was going to turn – I suppose- on whether one can separate the political activities from the collective bargaining and other administrative business….

    Clearly the conservative wing who had also proudly ushered in the Citizens United funding rules in recent times would now come full circle and circumscribe -rightly perhaps; but in the wrong way – that unions could no longer also fulfill that free speech obligation.

    But as Franklyn’s wry remark suggested, the law is an elitist regime and the perception that incredible brain power and intelligence is mandatory for any of its ‘real’ practitioners keeps us fully subjugated to rather strange behaviours….whether in US or right here in lovely BIM.


  15. ac April 3, 2016 at 9:22 AM #

    my comment might be a bitter pill to sallow but the constitution is not based on biases or friendly or unfriendly mouthings of any one individual /s or organisation in a democracy, but is a legally binding piece of legislation to protect society from smooth talking push peddling dictators of the bush tea persuasion
    His unapologetic leanings and opinions swayed with fanciful dictatorship practices always leave me S MFH
    Sir it seems your brass bowl analogy has finally come full circle and has emptied all its contents on you compliments of the BU household

    Have a nice day Professor brass bowl


  16. Caswell Franklyn April 3, 2016 at 9:28 AM #

    I agree with the deductible of $240 in theory but it is just being used to justify the deductible of $5,000 for members of parliament.

    Sent from my iPad



  17. David April 3, 2016 at 9:30 AM #

    Then we have to be consistent in the role of government in support of government support for unions.


  18. Caswell Franklyn April 3, 2016 at 9:41 AM #

    The $240 is known and widely accepted but I am talking about payments that are not generally known. For example, the general secretaries of both major unions received duty free concessions on high end motor cars. As required by law, the waiver was not laid in the Parliament and published in the Official Gazette. These concessions are given in secret. Also, they get financial support on a yearly basis but the money is never identified as payments to unions. It is placed in the Estimates as part of the allocation for the Ministry of Labour. This is a carefully kept secret and that is why I oppose these payments. Do it above board or not at all.

    Sent from my iPad



  19. David April 3, 2016 at 9:49 AM #

    This seems an issue for the Opposition to challenge supported with other advocates from civil society. This is how a vibrant democracy should work.


  20. Bush Tea April 3, 2016 at 10:11 AM #

    @ David
    This seems an issue for the Opposition to challenge supported with other advocates from civil society. This is how a vibrant democracy should work.
    What issue for the opposition to challenge what?!?
    This is just a lotta shiite …that people like Caswell should challenge and REJECT.
    It is the same kinda bribery shiite that the politicians then go on to do with businessmen, investors, and eventually, everyone else looking to do business in the place.
    The reason why it is now endemic is that people like Caswell ‘have no problem with the deductible’ …or with the payments – except they should be done in public…. (WHO PAYS BRIBES IN PUBLIC?) …and hence are in NO position to condemn the ministers who go after “finder’s fees”, ‘commissions’ and other euphemisms for bribes….

    Unions should accept nothing from Employers /Government….and should look to their own membership for support of their work in the member’s interests. Who pays the piper calls the tune- so it is only obvious what the music will be …under government funding.

    ALL workers should be REQUIRED to pay union dues….
    Are they all not now REQUIRED to pay taxes and NIS – for Stinkliar to give to Bizzy as he pleases? Why the hell should they not pay for the union to REPRESENT their rights, status and future prospects?

    Our Government is comprised of a pack of misguided blind jokers
    The Unions are just mendicant, visionless bowls – bungling their way through life…
    …and the workers are small-minded, selfish minions ..who make themselves willing fodder for exploitation through their selfishness…

    Unfortunately, wisdom only comes from one source…..


  21. Jeff Cumberbatch April 3, 2016 at 10:17 AM #

    Dompey, your comment @ 9:11 illustrates perfectly the separation of powers in the US system of governance. The legislature passes the law, the Court determines whether it is constitutional and the legislature has another try…that is subject again to the court’s determination of its constitutionality.

    dPD @ 9:19, perhaps that is why they are Conservatives…they want to conserve [or preserve] the original intent… as if time has stood still! Some choose to interpret the Holy Writ similarly.


  22. David April 3, 2016 at 10:22 AM #

    … as if time has stood still! Some choose to interpret the Holy Writ similarly.

    O Shiiirt!


  23. Jeff Cumberbatch April 3, 2016 at 10:34 AM #

    Or, David, as some Jamaicans will have it, “Blouse and Skirt!”


  24. Dompey April 3, 2016 at 11:09 AM #

    There are times when the Constitution ought to be interpreted the way the Framers intended to be, and at times it ought to transcend the Framers intent to achieve the desired effect.
    Nevertheless, take for example the Free Exercise Clause of the First Amendment, with the expressed wording: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Now fast-forward to 2016, if the 9 persons who now occupies space on the court interpreted the Constitution the way the Framers intended it to be, Satanist would be practicing human and animal sacrifices today.
    So that is why Congress has the vested power to implement legislation which governs the applicability of religion irrespective of the Framers original intent.
    And consequently, that is why many who adheres to a liberal proclivity believe that the Constitution must be interpreted to meet the demands of the modern life. And in addition to that view: quite a few believe that the CONSTITUTION MEANS WHAT THE SUPREME COURT SAYS IT MEANS.


  25. Dompey April 3, 2016 at 12:06 PM #

    Caswell Franklyn

    “Law is an elitist regime”

    What Caswell has failed to acknowledged is that fact that laws are enacted by people from every stratum of society, an a number of academic backgrounds. And some of whom have had a basic secondary/high school education. President Abraham Lincoln attended law school less than a year, and could have sat on the Highcourt, if he was nominated by the president and confirmed by the Senate.


  26. Well Well & Consequences April 3, 2016 at 12:11 PM #

    Dompey….at the end of the day, they do make it all up as they go along, with amendments, ratification and new laws to adapt to new standards…the template is alwsys tweaked to make things work better or how present day lawmakers think they should work.


  27. ac April 3, 2016 at 12:54 PM #

    If the law does not reach the standards and required tenants of fair and equal it would eventually failo
    as was done with the abolishment of the law separate but equal


  28. Dompey April 3, 2016 at 1:24 PM #

    Well Well

    I would agree with you that the laws which lose they efficacy ought to be repeal. Like the Obeah laws which are still on the books of Barbados!


  29. Jeff Cumberbatch April 3, 2016 at 1:34 PM #

    @Dompey, anyone may become a US Supreme Court justice. A legal qualification is desirable and usually demanded, but is not expressly required!


  30. Well Well & Consequences April 3, 2016 at 1:49 PM #

    Dompey…it will take a more informed, less selfish, less secretive, more mature but younger generation of polticians in Barbados to abolish the existing archaic laws and implement and enforce more modern, suitable laws to meet today’s standards in the population’s best intrrest.


  31. David April 3, 2016 at 1:53 PM #


    What obeah law are you referring to?>

    BTW someone email BU your submission to naked exposure about Bajans being xenophobic…lol.


  32. Bush Tea April 3, 2016 at 2:08 PM #

    @ David
    Since Dompey became a feature writer on Naked – complete with picture and everything – he don’t fart pon we here on BU….
    …what was it Domps? …a 12 word exposition on xenophobia in Barbados?


  33. David April 3, 2016 at 2:11 PM #

    @Bush Tea

    Why does he bother to use a moniker on BU anyway…lol.


  34. Bush Tea April 3, 2016 at 2:29 PM #

    Why does he bother to use a moniker on BU anyway…lol.
    LOL @ David
    Same as everyone else…
    To piss off Carl Moore… 🙂


  35. Dompey April 3, 2016 at 3:35 PM #


    As a Bajan would sah: mark my words, the libelous social blog NakedDeparture days are numbered.The Attorney General of Barbados has in possession a pile of documents handed to him by the countless number of people whom have been the victims of this libelous blog. Is that what yall call journalism in Barbados? And where is the moral outcry from the legitimate media houses in Barbados, against this atrocious and libelous conduct David? There is a moral- desiccation permeating every level of the Barbadian society, and it is made evident by the desensitization and acceptance of this kind of behaviour by NakedDeparture.


  36. David April 3, 2016 at 3:38 PM #

    Ok den!

    S what compelled you to submit a piece Domps?


  37. Dompey April 3, 2016 at 4:09 PM #

    @ David

    “What compelled me to submit a piece”

    The reluctance and acceptance of people in your profession, who have stood idly by and allow this despicable blog NakedDeparture to practically defamed the entire Barbadian population.


  38. David April 3, 2016 at 4:12 PM #


    Your response lacks relevance considering the content of your submission. Too besides, BU is a blog.


  39. Colonel Buggy April 3, 2016 at 4:14 PM #

    Dompey April 3, 2016 at 3:35 PM #
    Is that what yall call journalism in Barbados?

    The right question, Bro is,…… Is that what you call journalism in the United States? Naked Departure originates from the USA, and most likely the blogger holds USA citizenship, or is a Green Card Holder. So the cock up is on your side.


  40. Dompey April 3, 2016 at 4:31 PM #

    The Attorney General of Barbados cannot afford to be lackadaisical in his efforts to get the blog taken down, in an attempt to deny this egregious character the to opportunity to publish and broadcast such filth.


  41. David April 3, 2016 at 4:33 PM #


    If the site is ‘filth’ why were you motivated in a very special way to make a submission?


  42. Dompey April 3, 2016 at 4:42 PM #

    Colonel Buggy

    Well if the filthy blog NakedDeparture is in fact a US blog, then the Attorney General of Barbados should be in consultation with the US State Department or the US Attorney General office, regarding the blog defamatory practices against the Barbadian people.


  43. Dompey April 3, 2016 at 4:58 PM #


    Some idiot sent something I had written on Barbados Today regarding the Sex Offenders Registry, and the Vigilante Mentality to NakedDeparture. And I was piss off because NakedDeparture misrepresented my words and posted my photo at the same time.


  44. David April 3, 2016 at 5:01 PM #

    Have you asked Veronica Cutting (nicely) to remove your pic Domps?


  45. Dompey April 3, 2016 at 5:14 PM #

    Colonel Buggy

    And even if the reprehensible blog NakedDeparture originates in the US as you have stated, we as caring citizens could still send the blog a strong message by refusing to entertain its libelous filth.


  46. Dompey April 3, 2016 at 5:22 PM #


    It matters little if she remove it or not because I don’t haven’t anything to hide. Remember a lot of my information is public knowledge having been party to federal and state armed forces and subject continually to FBI checks.


  47. Colonel Buggy April 9, 2016 at 11:25 PM #

    Speaking of an Unholy Alliance. He who pays the piper………………


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