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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