Federal appeals courts give workers some wins

WASHINGTON—The U.S. Supreme Court hasn’t taken, much less tackled, workers’ rights cases in the last six months, but the federal appeals courts have—and they’ve given workers some wins.

That’s not to say the appellate victories would immediately set precedents and lay down the law, so to speak, for workers nationwide. That’s what the U.S. Supreme Court does.

But the justices take so few cases, the appellate courts, which are just one level below the high tribunal, have extraordinary sway over workers’ rights. Their rulings apply immediately to workers in the individual states or groups of states involved, at first. And those same rulings can later have national impact, as judges and attorneys from coast to coast cite them in defending, or attacking, workers.

Just consider one potential example: a 7th U.S. Circuit Court of Appeals decision on Dec. 17 in a case involving the Teamsters organizing a group of college student workers at the University of Chicago library system.

Appellate judge Michael Kanne ruled for the 200 workers and for Teamsters Local 743. He ordered university officials to recognize and bargain with the union, which the workers voted in. Unions win many rulings like that, usually before the National Labor Relations Board, and courts enforce them. That happened here.

The difference—and what could make this case notable nationwide—is two-fold. One factor is the remaining three NLRB members (there are two Democratic-seat vacancies) are all right-wing anti-worker Republicans nominated by President Donald Trump.

That board is in the midst of not only considering yanking unionization and worker rights from graduate student research assistants and teaching assistants, but doing so more or less permanently by making the ban a federal rule.

Meanwhile, the second factor is the UofC student library workers are the first group of undergrad students to unionize at any university in the U.S., and there are a lot more undergrad student workers on college campuses than grad student workers.

With that example in mind, here are some other notable appellate court rulings involving workers that came down in the last six months of 2019:

Don’t go behind the union’s back during bargaining, don’t threaten workers with losing their jobs if they strike—and don’t lie. Employers frequently break labor law all three ways. Unions often win such labor-lawbreaking complaints at the NLRB, and the firms respond by taking the cases to court. The D.C. Circuit Court of Appeals, restating those bans, found Ingredion, Inc., a national corn starch maker, followed that pattern during and after bargaining with Bakery, Confectionery, and Tobacco Workers and Grain Millers Local 100G in Cedar Rapids, Iowa, in 2015. Ingredion also illegally said bargaining was at an impasse and imposed its contract terms. On July 19, the appellate judges, backing the board on all those charges, ordered Ingredion to follow the law, make workers whole for their losses—and for the firm’s chief bargainer to read the court’s order aloud before the workers.

Federal workers have some, but shrinking, due process rights against arbitrary firings. Federal contract workers have none. That may change. The U.S. Marshals Service fired Stephen Marbury in 2011 and Daniel Hauschild in 2012 from their federal court security officer jobs in upstate New York. They sued, arguing they had a “property interest” in having a job. In lower courts, Marbury lost and Hauschild won. Routine so far, except the Marshals Service didn’t hire them. Its contractor, Akal Security, did. But the Marshals Service ordered Akal to unilaterally fire them, despite Akal’s contract with the United States Court Security Officers, an independent union. It did. The union and the workers sued. Judge Jon Newman of the 2nd U.S. Circuit Court of Appeals in Manhattan ruled for them.

Citing a 33-year-old decision in a similar federal court case involving a school board, Newman said the “just cause” provision of the union contract with Akal protects contract workers, such as the two security officers, from arbitrary firings, by their immediate employer or the government agency that hires the employer. If other lawyers extend it nationwide, that ruling could protect thousands of contract workers: janitors, security guards, food service workers, and their colleagues, for example. Just cause, Newman said, “unequivocally creates a property interest in continued employment.”

The 1962 Equal Pay Act doesn’t require a worker whose pay is shorted to prove absolutely unequal pay before going to trial. Companies and courts have shot the 1962 law, which mandates equal pay for equal work for working women and others, full of holes and exceptions. On Dec. 17, the 2nd U.S. Circuit Court of Appeals closed one loophole that a company attempted to create.

“To establish a prima facie pay discrimination claim,” worker Danielle Markou “need not first establish an Equal Pay Act violation—that is, that she performed equal work but received unequal pay,” the court’s three-judge panel ruled. “Rather, all Title VII requires a plaintiff to prove is that her employer,” Systemax, “discriminate[d] against [her] with respect to [her] compensation because of [her]…sex.”

The Democratic-run U.S. House passed legislation to close all those Equal Pay Act loopholes. Senate Majority Leader Mitch McConnell, R-Ky., labels the new equal pay bill “socialism” and won’t even let lawmakers hold hearings on it. The GOP Trump administration opposes the measure, too.

You can’t take over the union contract, proclaim yourself a “perfectly clear” successor to the former employer, hire the old unionized workers—and then start changing things on the sly. That’s what First Student, the nation’s leading for-profit school bus company, did after it won the right to run the buses in the Saginaw, Mich., school district in 2012, the Circuit Court of Appeals for D.C. found. First Student even told Steelworkers Local 9036 it would be the “perfectly clear” successor employer.

But once it got in, the firm started cutting hours, changing schedules, and refusing to pay for training, among other things, all without even telling Local 9036. Appellate Judge Edith Nourse Rogers ruled First Student broke labor law. A company breaks labor law “if it changes terms and conditions of employment unilaterally, i.e., without giving employees an opportunity to bargain collectively through their union,” she bluntly said on Sept. 3.

“To avoid ‘perfectly clear’ successor status, a new employer must clearly announce its intent to

establish a new set of conditions prior to, or simultaneously with, its expression of intent to retain the predecessor’s employees,” Rogers added. Anything else “by word or deed, misled” the workers.

The firm can fire you, after the strike is over, for playing dangerous games, so to speak, against a company truck on a high-speed highway. That’s what Illinois Consolidated Telephone Company did to 39-year worker and union supporter Pat Hudson after it settled a strike by Electrical Workers Local 702 in December 2012.

Hudson was driving on Route 16 to the picket line, with colleague Brenda Weaver in the car behind her, when they saw the truck. The ensuing back-and-forth, at high speeds, involved, among other tactics, the women cutting off the truck, slowing down while driving next to each other (backing up traffic), and the trucker accelerating around them in a line of cars later on, then cutting back in. After the strike ended and a week before Christmas, the firm fired Hudson for her automotive maneuvers.

Local 702 defended Hudson, and the NLRB ruled for her, saying labor law protected her conduct. The firm went to court, which three years ago called the NLRB’s reasoning faulty. It told the board to try again. This time, the NLRB sided with Consolidated. So Local 702 took the case to the 7th U.S. Circuit Court of Appeals in Chicago, and appellate judge William Bauer ruled for the firm, too.

You must “consider, consistent with precedent, all of the relevant circumstances, and evaluate the objective impact on a reasonable non-striker of misconduct committed on a high-speed public roadway with third-party vehicles present,” Bauer wrote on Aug. 3. The NLRB did. Hudson lost her job.

Mark Janus tried to break his former union by demanding all the back “agency fees” he paid over the years. So did anti-union workers in Washington state. Both he and they lost. Janus, recruited and represented by the radical right so-called National Right to Work Committee, won his U.S. Supreme Court case against unions in 2018. The court’s party-line 5-4 vote made every single state and local government worker nationwide a potential “free rider,” able to use union services without paying one red cent for them, not even “agency fees” for non-unionists whom unions represent.

But then Janus, and the others, went one step farther: They sued state governments in Illinois and Washington state for the back “agency fees” unions, specifically AFSCME, had collected, under state law, over the years from them. The 9th Circuit Court of Appeals in San Francisco and the 7th Circuit in Chicago turned their “refund” demands down flat. But don’t be surprised if the RTW crowd and its pawns try elsewhere, in more-conservative appellate courts, as part of their effort to “defund the left.”

Florida’s Republican Attorney General tried to kill a citizen initiative to raise the state’s minimum wage by a constitutional amendment. The Florida Supreme Court, without dissent, said on Dec. 19 that the initiative goes on the 2020 ballot as is. The AG wanted an “advisory opinion” from the judges on “the validity” of the minimum wage hike, and whether it followed both state law and the state constitution. He also demanded a “financial impact statement” about the increase. Both moves are, of course, designed to stop the minimum wage hike.

“Nothing doing,” the Florida justices—of both parties—replied, in essence. “The initiative petition and proposed ballot title and summary for the proposed amendment met the legal requirements” of the state constitution and laws governing initiatives, they wrote. “And this court does not have original jurisdiction to review financial impact statements,” either, the jurists added.


CONTRIBUTOR

Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.

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