Courts remain key to advancing workers’ rights

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MADISON, Wis. - If you think courts aren't important to workers, then unions in Wisconsin, Alaska and Texas have a blunt message for you: Wrong.

Federal and state courts in those jurisdictions had major says in the future of workers' rights in the last six months. And workers came out of those three headline struggles with two wins and a loss.

The loss got the national publicity: A U.S. District Judge in Wisconsin upheld the key section of the anti-collective bargaining law imposed by Radical Right GOP Gov. Scott Walker and the Republican-run legislature.

That left 200,000 state and local government workers in the Badger State without the right to bargain for themselves. Union membership in Wisconsin suffered, and other Right Wingers nationwide are emboldened by Walker's law. Ironically, the judge kept the collective bargaining ban - and threw out almost all of the rest of Walker's statute.

The win in Texas was actually in the 5th U.S. Circuit Court of Appeals in New Orleans. The Communications Workers have been campaigning for years to get an election among almost 10,000 ground personnel at American Airlines.

The National Mediation Board, which runs union-management relations at airlines and railroads, finally - after a lot of hemming and hawing - gave the election a green light, but then a federal judge in Fort Worth, Texas stepped in.

American, headquartered in Fort Worth, had filed for chapter 11 bankruptcy reorganization. That type of thing that usually stops organizing drives in their tracks. However, it only made the workers at American ever more determined to unionize with CWA. The judge, a Republican appointee, bought American's argument that the very fact of a recognition election would damage the airline - regardless of the outcome. It was the first-ever ruling of its kind.

The appellate court threw out that decision, calling it, in so many words, ridiculous. The election went ahead, with results to be announced in mid-January.

In Alaska, the state Supreme Court ruled in November that communications between unions and their members about such things as grievances are confidential. The only other state with confidentiality is Illinois, said Jake Metcalfe, executive director of AFSCME Local 803, which brought the case.

"We were concerned that unless the court ruled the way they did, we would have had to tell our members - when we were interviewing them in grievances and related matters - that anything you tell me is not confidential. That would have really made it hard for us to help people," said Metcalfe.

The Alaska justices ruled "the right of the union and its members to function free of harassment and undue interference from the state is implicit in state law. If unions are to function, leaders must be free to communicate with their members about the problems and complaints of union members without undue interference."

"The court's ruling is especially welcome at a time when union membership is vilified by Right-Wing politicians who want to wrongly place blame for economic troubles on the backs of public service workers and our union," Local 803 said. Other states could cite Alaska's ruling as a precedent, Metcalfe added.

These rulings highlight the importance of state supreme courts and federal appeals courts for workers, since few workers' cases ever get to the U.S. Supreme Court. One that might - once the U.S. Circuit Court of Appeals for the District of Columbia issues its own decision - questions the very power of the National Labor Relations Board (NLRB) itself.

Arguments heard

That appellate court heard arguments in 2012 in a case the National Association of Manufacturers brought against the NLRB. NAM, a leading business lobby, is not only challenging the specific rule the NLRB proposes - ordering employers to post signs in workplaces advising workers of their rights to join, or not join, unions - but also NLRB's power to write any new rules at all. Depriving NLRB of the power to write rules even interpreting labor law would further hamstring an already weak agency. Other recent court rulings that will have an impact on workers include:

Two federal appeals courts, one on each coast, reaffirmed that public workers who turn whistleblower do so at some peril. In August, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that when Burbank police detective Angelo Dahlia complained to his superiors about "abusive interrogation tactics" by his colleagues, the city was within its rights to put him on administrative leave. He was not complaining as a private citizen and thus did not have 1st amendment rights protecting his allegations, the court - citing prior federal court rulings - said.

The other case involved Risa Ross, a former payroll clerk at the Katonah, N.Y., school district. She blew the whistle on several workers who forged their boss' signatures on pay stubs and other documents to get extra money. But an outside consultant, brought in to overhaul the entire district, found Ross had lied on her job application. After a hearing, the school board fired her. She sued, saying the firing was in retaliation for exercising her constitutional rights. But the federal appellate court judges in New York City disagreed, saying the constitution did not cover her case.

Both those rulings reinforce a recent comment about workplaces and law by Service Employees General Counsel Judy Scott. For the most part, she said, constitutional rights stop at the workplace door.

If a multi-employer pension plan, jointly run by unions and management, gets into financial trouble, an employer can jump over the side. In a case involving Honerkamp, Inc., a wood chip distributor with plants in the Bronx and on Long Island, the multi-employer plan's trustees found it was in "critical" status and drafted payment schedules for the participating employers to extend its life to 2024. Honerkamp, in bargaining with Bakery Drivers Local 802, announced it couldn't afford the payments and proposed a new contract that took Honerkamp out of the pension plan and let it set up a 401(k) plan for its workers.

In 2009, the Bronx workers agreed, but the Long Island workers didn't. So Honerkamp declared impasse in bargaining there and unilaterally imposed its new contract - including the 401(k) plan and withdrawal from the traditional multi-employer pension plan. The following February, the multi-employer plan's trustees sued. The 2nd U.S. Circuit Court of Appeals in Manhattan sided with Honerkamp.

"To our knowledge, no other court besides the district court in this action has considered whether the Pension Protection Act (PPA) prohibits employers from withdrawing from multi-employer pension plans in critical status," the judges wrote. "On this issue, the PPA itself is silent. But, as is always the case in statutory interpretation, the ultimate question here is one of congressional intent...In enacting the PPA, Congress did not intend to prevent employers from withdrawing from multi-employer pension plans in critical status."

The California constitution lets charter cities override state law on prevailing wages for construction workers. The 5-2 California Supreme Court ruling is important even though it applies only to one state, because California has one-eighth of the U.S. population and - despite the Great Recession - a proportional share of its construction, including municipal construction.

 "Under the state Constitution, the ordinances of charter cities supersede state law with respect to 'municipal affairs,' but state law is supreme with respect to matters of 'statewide concern,'" the court majority wrote. The city of Vista, in San Diego County, after approving a new sales tax to rehab several public buildings, argued that doing so "is a municipal affair and therefore governed by its local ordinances," and not a statewide concern.

Those local ordinances banned paying prevailing wages unless the projects use state or federal dollars. The California Building and Construction Trades Council sued the city, saying the state constitution and its prevailing wage law took precedence. The council lost in lower courts and in the state Supreme Court, too.

The construction unions told the justices "prevailing wage law addresses important statewide concerns and therefore it applies to charter cities just as it applies to other cities." Vista argued charter cities "have fiscal control over local 'municipal affairs' and these cities can determine whether to include 'prevailing wage' requirements in local public works contracts."

California's Supreme Court majority cited an 80-year-old ruling involving building a fence around a municipal reservoir: "The money to be expended for the cost of the improvement belongs to the city and the control of its expenditure is a municipal affair... Construction of a city-operated facility for the benefit of a city's inhabitants is quintessentially a municipal affair, as is the control over the expenditure of a city's own funds."

Photo: Wisconsin courts upheld Gov. Walker's attacks on the collective bargaining rights of public workers.   Flickr

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