Court Cases Threaten Unions and Working Families
January 13, 2014
One of the main arguments in favor of voting and engaging in the political process is the importance of electing friends who will appoint fair-minded judges. When we fail, important gains won at the bargaining table or in legislation can be negated by the courts.
Progressives who follow the courts are warning that recent and upcoming decisions have the potential to mark major setbacks for workers across the U.S.
U.S. Supreme Court Considers Challenge Obama NLRB Appointments
Between Jan. 13 and 21, the U.S. Supreme Court will hear two labor cases. The first, Noel Canning v. NLRB, could overturn hundreds of NLRB rulings favorable to workers. The second, Harris v. Quinn, tests whether employees who choose not to join a union can be required to pay “fair share” fees for representation.
“Noel Canning goes to the very heart of workers’ rights,” says Mark Gruenberg, Press Associates staff writer in an article, “Big Month for Workers’ Issues at Supreme Court.”
Noel Canning, a Washington state firm, sued the NLRB in lower courts and won a decision at the U.S. Circuit Court of Appeals for D.C. that the members of the board were illegally appointed by President Obama.
Republicans had stonewalled on approving new appointees to the five-member NLRB, keeping the agency from hearing cases. So, Obama called upon his power to make “recess appointments” to the board while Congress was out of regular session.
But Republicans in Congress had called brief sessions, some only lasting a minute, in the interim, claiming Congress was still in session.
If the court overturns Obama’s appointments, it could negate more than 1,000 NLRB decisions.
SCOTUS Weighs Objections to ‘Fair Share Fees’
In Harris v. Quinn, the National Right to Work Committee contends Angela Harris and eight other home care workers who maintain that Gov. Pat Quinn (D-Ill.) violated their rights to free speech when he signed a bill allowing their employer to deduct “fair share fees” to pay for union representation costs from their paychecks.
Opposing Harris’s argument, attorneys for SEIU and AFSCME, unions that represent home care workers, contend that the First Amendment to the 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.”
“It’s more than ironic that some of the same political players and lobbyists who blame unemployed workers and the impoverished for failing to take ‘personal responsibility’ for their lives are asking the Supreme Court to defend a handful of plaintiffs who want to freeload off the efforts of men and women who sacrificed to win union representation for their peers,” says International President Edwin D. Hill.
Picketing Rights on the Line
The AFL-CIO has filed a friend-of-the-court brief in the U.S. Supreme Court supporting abortion opponents who are challenging a Massachusetts law passed six years ago that restricts protests within 35 feet of abortion clinics.
While the labor federation said it supports the legitimate goal of protecting women who want to use the clinics, the AFL-CIO stated that the law violated the First Amendment guarantee of free speech and could lead to restricting access to workplaces and other venues by unions and other progressive groups attempting to educate and organize their constituents.
Ruling Could Derail Employment Class Actions
In an op-ed in Politico, “A Court Just Gutted Your Right to Sue Your Boss,” Craig Becker, general counsel to the AFL-CIO, discusses a December decision by the U.S. Court of Appeals in New Orleans that threatens to undermine class action suits filed by workers against their employers.
Employment class actions have been a critical tool for employees to challenge discrimination, enforce the minimum wage and other standards, like properly classifying workers.
The case involves D.R. Horton, a home-builder operating in 27 states with annual revenue over $6 billion. The company mandated that all employees sign an agreement upon their hiring requiring that any employment disputes be resolved by binding arbitration and that the arbitrator may hear only individual claims.
The National Labor Relations Board ruled against Horton’s mandate, holding that requiring workers to waive the right to join with co-workers in workplace claims violated federal labor law.
In a 2-1 vote, the New Orleans Court of Appeals reversed the NLRB’s ruling. The court held that the Federal Arbitration Act, enacted in 1925, required courts to enforce private parties’ lawful agreements to resolve disputes out of court.
Responding to the court’s ruling Becker—who was a member of the NLRB when D.R. Horton was decided—said, “The Federal Arbitration Act does not say anything about class actions and does not require enforcement of arbitration agreements that violate another law, such as the National Labor Relations Act.”
“Do federal judges think a fast-food worker denied wages owed him will dare to pursue arbitration alone against his employer? A female cashier denied promotion based on her sex? Perhaps Congress will ensure that the laws of our land have continued vitality outside the workplace when it takes up the Arbitration Fairness Act this year,” writes Becker.
Employers Evade Responsibility to Inform Workers on Labor Rights
Last year, the U.S. Court of Appeals for the D.C. Circuit stuck down a rule enacted by the NLRB that required businesses to hang posters in the workplace detailing U.S. workers’ labor rights.
Even though dozens of federal agencies have similar requirements, like the Department of Labor—informing workers of their rights to a minimum wage—powerful employers challenged the NLRB contending that posting the notices was “a government-imposed regulation that would create a hostile work environment while injecting politics into manufacturers’ day-to-day business operations.”
In an article in the Huffington Post, Dave Jamieson explains that the NLRB faced a deadline of Jan. 2 to appeal the court’s ruling to the U.S. Supreme Court but chose to let it pass.
“An official familiar with the decision [to let the deadline pass] told HuffPost that there were concerns at the Justice Department that an adverse decision by the Supreme Court could create problems for other agencies,” says Jamieson.