Big Month For Workers' Issues At Supreme Court
Friday, January 3, 2014(Metropolitan Washington Council, AFL-CIO)
By Mark Gruenberg, PAI Staff Writer
January will be an active month for workers at the U.S. Supreme Court. The justices will hear arguments in the long-running political dispute over the power of the National Labor Relations Board and then tackle a case involving yet another Radical Right challenge to worker representation. And they’ll handle a case that – though it doesn’t involve unions – could affect organizing. And all the action will occur between January 13 and 21.
The High Court’s oral
arguments point up, again, that what workers
win at the bargaining table, or by law, can be
overturned by judges wearing
black robes. Indeed, such a reversal is
at the heart of the first and most important
case, on Jan. 13.
That one, Noel
Canning
vs. NLRB, goes to the very
heart of workers’ rights, because it
questions if the board has the power – and
the right – to enforce labor
laws.
Noel Canning
involves a Washington
state firm that sued the NLRB in lower courts,
and won at the U.S. Circuit
Court of Appeals for D.C., often called the
nation’s second highest court, by
arguing that the labor board itself was
illegally appointed.
The firm got a GOP-named
appellate majority to agree that two of
the three sitting NLRB members who ruled in its
case, involving its labor
law-breaking in a contest with Teamsters Local
760, were illegally named
“recess appointees.” Thus, the
GOP-named
judges ruled, the board’s decision against
the firm was illegal, too. And so are
some 1,000 other NLRB rulings,
Noel Canning and its Republican allies contend.
Democratic President
Barack Obama named the recess appointees
because Senate GOP filibusters deliberately
trashed all of his regular nominees
to the 5-member board. But the
filibusters won’t be part of the argument
before the justices on Jan. 13.
The GOP, whose lawyers
will be in the court arguing on the side of
the company (along with the firm’s own
attorneys), contends Obama made the
appointments when the Senate wasn’t in
recess.
It was actually meeting every three days, but
only for a minute or so,
where one senator would call the session to
order, bang the gavel and then
adjourn. (One session lasted 35
seconds.) That’s not a recess, the GOP
says.
Thus, the GOP and the firm
say, the NLRB’s Canning ruling, and
others like it by the recess appointees named
during one of the 3-day gaps, on a wide range
of worker-management disputes and
issues, are illegal. So was the board,
the firm says.
The Obama administration,
defending the board, says that such
1-minute sessions every three days are shams,
designed to prevent the president
from naming top officials to vacancies,
including at the NLRB.
“The Court of Appeals
erred in holding the recess appointments
clause does not authorize presidential
appointments during intra-session
recesses,” the Justice Department, defending
the NLRB and the president, said
in its brief to the justices. “The
plain
meaning of the term ‘recess’ -- a period of
cessation from usual work --
applies to both inter- and intra-session
recesses,” it adds. Inter-session
recesses are longer breaks,
such as when Congress goes home every December.
“The Court of Appeals
thought the clause refers to “the” (rather
than “a”) recess to refer to one recess,
which it further surmised must be an
inter-session recess. But the definite
article ‘the’ is commonly used -- including
in the Constitution itself – to
refer to a category of events, and the phrase
‘the recess’ was, by 1787,
regularly used to describe the equivalent of
intra-session breaks,” the Justice
Department adds.
The intra-session recesses
are the 3-day breaks the GOP forced on
the Senate to keep Obama from naming NLRB
members, or anyone else, to staff the
government.
“Excluding intra-session
recesses from the recess appointments
clause would undermine its central purposes,
because it would prevent the
president from being able to fill offices, and
exercise his constitutional
responsibility to take care the laws be
faithfully executed, even when the
Senate is unable” to vote on appointees, DOJ
said.
The anti-worker anti-union
National Right to Work Committee is –
again – bankrolling and arguing against
workers in the other direct challenge,
Harris vs. Quinn, to unions and
unionists that the justices will hear.
The case will come up on Jan.
21.
In Harris,
the
so-called right-to-work group used Angela
Harris and eight other anti-union
home care workers to challenge Illinois’ law
that lets the state recognize
unions if the unions win representation
elections among home health care
workers and disability care providers.
AFSCME and SEIU sought to represent all the
workers.
Harris and the RTW crowd
argue that Gov. Pat Quinn, D-Ill., signed
an unconstitutional law that lets the state, as
the employer, deduct “fair share
fees” to pay only for union representation
costs, from the workers’
paychecks. The deduction, the RTW crowd
says, violates workers’ free speech
rights.
It wants the law tossed.
“The 1st
Amendment” to the U.S.
Constitution “permits the government to
require both public sector and private
sector employees to pay a service fee to the
local union that acts as their
exclusive bargaining agent,” AFSCME and SEIU
replied in their brief.
“This court has already
considered and rejected” the right-to-work
crowd’s
“arguments that exclusive collective
bargaining representation and fair-share
fees violate the 1st Amendment,”
the two unions said. “This court placed
protective limits, barely
acknowledged by petitioners” -- the
right-to-work crowd -- “on both the meaning
of exclusive representation and the scope of
fair-share fees to ensure they
comply with the 1st
Amendment.
Petitioners do not allege that those
limitations were
transgressed.”
The two unions also said the justices should toss the Right to Work crowd’s appeal out of court, after the unions won at two lower levels upholding the Illinois law. That’s because although the law lets the home health care and disability workers organize and lets unions represent them, SEIU Local 73 won the representation vote among the 4,500 disability rehab workers, but both Local 73 and AFSCME Council 31 lost its vote among the 20,000 home health workers. “No union” won that vote.
The third
High Court case could affect whether unionists
can communicate with workers in
an organizing drive – even though unions
aren’t among the case
contenders.
Seven
years ago, responding to right-to-lifers’
accosting women using abortion
providers’ clinics, the Massachusetts
legislature barred such protests within
35 feet of a clinic entrance. The
right-to-life groups are challenging that as an
unconstitutional limit on free
speech in Eleanor McCullen et al vs.
Martha Coakley, the Massachusetts
attorney general. The justices will hear
the case on Jan. 15.
The AFL-CIO filed a friend-of-the-court brief, stating its position, on McCullen’s side, for its own reasons: That the anti-protest law could hurt unions trying to communicate with workers. AFL-CIO lawyers will not actually appear in the case.
In plain
English, the fed said, the legislature went too
far, by banning all forms of
reasonable contact near a health care facility
– and not tailoring the law to
target those that interfere with or harass
patients. All contact, the AFL-CIO said,
includes
talking with workers and leafleting during
organizing drives. And 35 feet is too far
away to talk.
The 2007 Massachusetts law
has “a legitimate goal” of protecting
women who want to use the clinics, the fed
said. But the law “unnecessarily
interferes with
expressive activities at the core of the
1st Amendment by forbidding
peaceful efforts to engage in conversation”
with the public, or give them
pamphlets “on the public sidewalks and
streets” next to the clinics. That
limits union campaigning, too, it
added.
“The Massachusetts
statute would forbid the union from
communicating with the employees in any
manner (their emphasis)” at what the fed
called “those particularly
appropriate sites” – public sidewalks,
streets and driveways -- for contacting
workers.
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