State high courts tackle workers’ issues

The days immediately following Labor Day were key ones for workers’ cases at high courts in several states, with a so-called right-to-work law in Indiana and back pay and damages for 7,500 fired New Orleans teachers and school staffers topping the list.

And a federal appeals court in Chicago got into the act, too, weighing in with its own split ruling on the Indiana right-to-work law, upholding the statute.

The cases illustrate the key roles of state and federal courts for workers: What workers win at the bargaining table can be and often is yanked away by men and women in black robes – or sometimes it can be restored by them, too. The New Orleans teachers’ case, which dates to the devastation from Hurricane Katrina in 2005, is the most-obvious example.

Lower Louisiana courts found the state and the Recovery School District that lawmakers established after the storm smashed the Crescent City did not follow due process of law in letting go all 7,500 workers in the New Orleans schools.  The workers were members of the United Teachers of New Orleans, an AFT affiliate and then the South’s largest union local.

The workers sued and won in lower courts.  If they win in the Supreme Court, the state, the recovery district and the Orleans Parish School Board could be jointly on the hook for at least two years of back pay, plus damages, per worker, or a combined $750 million.  In the Sept. 4 High Court hearing, both sides got a mixed reception from the justices.

Attorney Anthony Irpino, arguing for the workers, told the justices, “This case is about the state defendants and the Orleans Parish School Board wanting to eliminate tenured teachers from Orleans schools.”  He reminded the justices that when the recovery district started opening schools, it recruited new teachers and staffers not in New Orleans but nationwide.

That disturbed Chief Justice Bernette Johnson.  “There are teachers available on a list who are certified and available for employment,” at the time the boards were recruiting, she said.  The state’s lawyer retorted that Louisiana didn’t have to recall the fired teachers.  It just had to give them “priority consideration.”

Other justices appeared to be trying to split the group into teachers and staffers – with Justice Jeffrey Victory saying the state didn’t have to rehire any of the 5,000 fired staffers.

In Indiana, both state and federal courts got into the act after the GOP-run legislature enacted and then Gov. Mitch Daniels (R) signed a so-called “Right to Work” law months ago. 

Such laws are a longtime cause of the radical right, its business backers and GOP political puppets.  The laws let millions of workers be “free riders” by not having to pay dues for services unions provide in the workplace, including contract bargaining and enforcement. 

Without dues revenue, the unions have trouble protecting workers, members or non-members, in union-represented workplaces.

The Indiana Supreme Court heard arguments Sept. 4 in a case Operating Engineers Local 150 brought against the “Right to Work” law.  Lower court judges agreed with the union that the law violates Indiana’s constitutional ban on not paying someone for services rendered.

Dale Pierson, the attorney for the union, said that if the Right-to-Work law stands, unions will have to cut services to all members in order to represent everyone, due to the huge numbers of free riders.  That prompted one Indiana justice to suggest the unions could raise money by raising dues on their paying members.

Must represent everyone

Pierson also pointed out that under federal labor law, unions must represent everyone in a workplace where they have a contract, not just those who pay dues. Representing only those who pay dues “is not a legal possibility,” Pierson told Justice Robert Rucker.  “The state of Indiana is presumed to know that that’s the existing landscape and that those obligations are imposed upon unions by federal law.

“The remedy here then is write your congressman,” responded Indiana Justice Mark Massa.  “If you don’t like having to carry free riders, take it up with Congress; it’s not a state constitutional issue.”

Local 150 also challenged Indiana’s Right-to-Work law in federal court, but lost a split decision in the 7th U.S. Circuit Court of Appeals in Chicago on Sept. 2.  The local said federal labor law lets state Right-to-Work statutes “ban only union‐security agreements ‘requiring membership,’ or compelling workers to pay a full membership fee that serves as the functional equivalent of membership.” 

Local 150 is wrong, Judge John Tinder wrote in the 2-1 ruling.  “The Supreme Court has described union membership as synonymous with paying the portion of dues germane to the union’s collective bargaining,” which he called “the financial core” of union duties.  If unions disagree with that, “the controversy is one that ought to be addressed and resolved at the level of legislative politics, not in the courts,” Tinder wrote.

Local 150 President James Sweeney said at least the judges recognize the problem.  “Both state and federal courts have acknowledged and expressed concern about the burdensome and unjust obligation that unions have to provide free services in right to work states,” he said after the federal court’s prior hearing on the case.

The New Orleans backpay and damages case was the first of two the Louisiana Supreme Court heard on consecutive days.  On Sept. 5, the justices took on the Louisiana Federation of Teachers’ challenge to Right Wing GOP Gov. Bobby Jindal’s 2012 education “reform” package – a scheme Jindal may tout if he seeks the 2016 GOP presidential nod. 

Jindal’s “Teacher Talent Act” amalgamation of 11 laws put more power in hands of school boards and superintendents and weakened – if not abolished – teachers’ tenure protections.  Lower courts ruled that Jindal illegally combined the 11 measures, and Louisiana teachers’ counsel Larry Samuel said Jindal forced lawmakers into passing the entire act without votes on its individual sections.

 “The only way to put it is that they couldn’t have passed any of these objects as single bills,” Samuel told the justices. “That gives them an up or down, all or nothing kind of situation,” which is illegal under the state constitution, he said.

Jindal’s teacher law “was the product of logrolling and was steamrolled through the legislative process in clear violation of the Louisiana constitution,” union President Steve Monaghan told local media. “The trial judge agreed with our position three times. We’re hopeful that Louisiana’s highest court will concur. In any regard, what happened during the 2012 legislative process must never happen again.”

Besides the two cases in Louisiana and the Indiana Right-to-Work controversy, other workers’ issues are headed for state Supreme Courts nationwide.  They include:

• The California Supreme Court decided in August to hear a case about whether former truck driver Johnny Kesner could sue his uncle’s former employer, Abex, a West Virginia brake lining manufacturer, for exposure to asbestos.  Abex didn’t warn the uncle that exposure to asbestos fibers could cause cancer, the uncle brought them home in his clothes and Kesner breathed them in.  In 2011, Kesner was diagnosed with mesothelioma, an asbestos-caused cancer.

• The Ohio Civil Service Employees Association, an AFSCME affiliate, is trying to over-turn GOP Gov. John Kasich’s privatization of the prisons. The privatization, which is also part of the Radical Right’s plans to grab state services for themselves, deprived workers of pay and protections.  The union told the state Supreme Court by jamming the privatization into the state budget bill, Kasich broke the state constitution. Kasich used the budget bill to sell one state prison and privatize the others.  Lower courts sided with the union.

Kasich also outsourced the food service in the prisons, firing state workers and hiring          Aramark.  The result: Vermin infestation in the food and a $130,000 fine.  “When is enough enough?” OCSEA President Christopher Mabe asked a legislative committee in early September.  Between the vermin and a previous fine against Aramark for short-staffing, Ohio should fire Aramark and return state workers to the prisons, he said.  

Florida’s largest school-voucher program is unconstitutional because it redirects taxpayer money to religious schools and creates a separate system of state-funded schools, according to a suit filed last month in state courts. The Florida constitution explicitly says the state shall fund only public, not religious, schools.

Photo: Ckaris Williams, a New Orleans teacher and Katrina evacuee, prepares her classroom to receive students from New Orleans in Houston, Texas in 2005. Dave Einsel/AP