TYLER, Texas—The dangers of the continuing power of right wing judges and their ability to hurt all Americans were once again on display in Texas where the right has been running rampant for years.
A Donald Trump-named federal district judge in rural Tyler, Texas, tossed out the National Labor Relations Board’s recent rule governing joint employers and reinstated a Trump-era rule that favors bosses over workers.
Judge J. Campbell Barker’s ruling late in the evening of March 11 “is a disappointing setback, but is not the last word on our efforts to return our joint-employer standard to the common-law principles” of employment “that have been endorsed by other courts,” said NLRB Chair Lauren McFerran. “The agency is reviewing the decision and actively considering next steps in this case.”
Barker’s ruling is important for two reasons. One is the rule itself. The other is the right-wing trend in judges, almost all of them anti-worker and anti-rights, which Judge Barker represents.
Rule sought common sense standards
The NLRB’s joint employer rule which Barker threw out, via a nationwide injunction, sets common-sense standards for when joint employers—think Starbucks headquarters in Seattle and a local Starbucks—are jointly responsible for bargaining with workers and obeying or breaking labor law.
That aspect affects millions of workers at franchises, like Starbucks, McDonalds and hotel chains.
The other reason is Judge Barker is typical of the young right-wing ideologues whom former Oval Office occupant Donald Trump, aided by Federalist Society CEO Leonard Leo in the White House and then-Senate Majority Leader Mitch McConnell, R-Ky., in the Capitol, stuffed onto the judiciary.
Trump dumped an excessive number of ideological judges in Texas and Louisiana, leading to “judge shopping” by the corporate class and Trumpite state officials/clones nationwide.
Judge Barker, aged 37 when Trump dumped him on the bench and now age 44, was such an ideological Texas Deputy Solicitor General that he opposed workers’ rights, voting rights, women’s rights, LGBT rights and abortion rights, among other issues. His views are so extreme the Leadership Conference on Civil Rights—whose members include the AFL-CIO—took the unusual step of openly opposing him for a district judgeship.
Right-wing Republican Texas Gov. Greg Abbott and Attorney General Ken Paxton often lead the judge shoppers, seeking national rulings stopping everything from OSHA rules to abortion. Barker personally argued for those halts and for Trump’s Muslim ban and for Abbott’s voter fraud claims, while opposing sanctuary cities and opposing keeping the Dreamers in the U.S.
Such judge shopping is so excessive that even Chief Justice John Roberts, a mainstream conservative, now speaks out against it.
Judge Barker’s ruling returned the joint employer issue to a Trump rule that, the board said, “made it easier for actual joint employers to avoid joint-employer status because it set a higher threshold, that a putative joint employer must ‘possess and exercise…substantial direct and immediate control’ over essential terms and conditions of employment, which has no foundation in common law.”
In practical terms, the Trump-era joint employer rule which Judge Barker reinstated tosses workers from pillar to post in trying to figure out who controls what about their jobs—and who to bargain contracts with.
The NLRB rule Barker tossed, via his nationwide injunction against it, says a firm and its local outlet are joint employers “if each entity has an employment relationship with the employees and they share or codetermine” at least one of the “essential terms and conditions of employment” for workers. And control can be “direct or indirect,” NLRB said when it implemented its new rule last October.
Those essential conditions are “wages, benefits, and other compensation, hours of work and scheduling, assignment of duties to be performed,” supervision, work rules and “grounds for discipline,” hiring and firing, and “working conditions related to the safety and health of employees.”
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