Recent court rulings provide mostly positive results for workers – so far

After Katrina destroyed much of New Orleans the state destroyed the public school system, replacing it with charter schools. Recent court rulings say teachers in those schools can unionize, contrary to charter school attempts to classify themselves as state institutions "protected" from unionizing drives. | FEMA

WASHINGTON —The U.S. Supreme Court hasn’t issued any major rulings yet in its current term, which began in October. But that doesn’t mean the federal courts ignored workers’ issues. Instead, the load, as usual, fell on the federal appeals courts during the last six months of 2018, with mostly positive results for workers so far, a review of rulings shows.

Of course, that could change as GOP President Donald Trump and the GOP-run Senate continue to stack the federal courts with right-wing ideologues in judicial robes.

Federal appeals court rulings are important for several reasons: The courts each cover several states – except for the D.C. Circuit Court of Appeals, the most important of them all. That means a ruling in, say, the 7th Circuit Court of Appeals in Chicago applies to workers’ rights not just in Illinois, but also Indiana and Wisconsin.

The impact goes beyond that, however. Attorneys in workers’ cases – both for workers and for bosses – frequently cite appellate court rulings from other areas of the U.S.  in arguing their cases. So do the judges in deciding them. Thus, lawyers and judges in, say, California might cite the Chicago court’s decisions in arguing for or against workers, and ruling on them.

And the D.C. Circuit is a special wide-ranging exception. Often called “The Little Supreme Court,” it handles most federal agency cases. including most contested National Labor Relations Board and Labor Department agency rulings. As a result of agencies’ national reach, the D.C. Circuit’s decisions, like those of the High Court, have nationwide scope.

Put that together, and what workers win in union recognition elections, grievances, arbitrations, legislatures or by organizing drives can easily be upheld, or yanked, by federal judges. With that background, here are some key cases appellate courts decided since July 1:

• Does a disabled worker have to go all the way through an agency’s administrative process before heading to court? Until now, the answer has been “yes,” but a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals said “no.”

The case involved Larry Lincoln and Brad Mosbrucker, Brotherhood of Maintenance of Way Employees/Teamsters members disabled when a BNSF tank car in Wichita leaked a dangerous chemical in 2007. After treatment, medical personnel cleared them to return to work – but only inside, since the chemical involved caused permanent bodily damage. Since then, each applied for at least 20 inside-the-shop jobs. The union even selected Lincoln for training as a Safety Assistant. BNSF turned both down for everything, including the union post.

The two took their complaints to OSHA and other agencies, most importantly, the Equal Employment Opportunities Commission, which judges discrimination complaints. All their claims but the EEOC got tossed by lower courts. Usually, the EEOC tries to get the workers and the bosses to settle.

If that fails, and it decides they have enough evidence, EEOC then gives workers right-to-sue letters. This time, EEOC supported Lincoln and Mosbrucker in heading for court before talks with BNSF concluded – and the judges sided with them.

The 10th Circuit’s “precedent is incorrect” when it forces workers to go all the way through the EEOC process before they can head to court, the judges wrote. The relevant section of the 1964 Civil Rights Act that empowers the EEOC “makes no mention of any requirement to exhaust administrative remedies or to file an EEOC charge before bringing suit.” So Mosbrucker, Lincoln, and any other hurt worker can head for court more quickly.

• You can’t avoid paying your workers minimum wages and overtime by forcing them to become “subcontractors” or “corporations.” That’s what Jani-King, a foreign-owned janitorial services company, did to its janitors, who cleaned buildings in Oklahoma City teams of one or two. It got caught, and the Trump Labor Department sued Jani-King not just for failing to pay the workers but for failing to keep any records of what it was doing.

“The Supreme Court has directed the economic realities of the relationship” between a company and those it hires “govern” the outcome, the 10th Circuit panel ruled in October. “In determining whether an individual is an employee under the Fair Labor Standards Act” – the minimum wage and overtime pay law – “the inquiry is not limited to the contractual terminology between the parties in the way they choose to describe the working relationship.”

• Whistleblowers are whistleblowers, entitled to federal protection, all the time. That, in essence, is what the D.C. Circuit said in a case involving Foreclosure Connection, Inc., a Salt Lake City firm that buys, renovates and resells or re-rents foreclosed homes. It fired two workers, Mychal Barber and his son, Mychal Jr., on July 8, 2015, one day after the two complained to DOL that FCI broke federal labor law – the FLSA again – by not paying overtime. A later conversation with company bosses, surreptitiously recorded by another worker, confirmed the reason for the firing.

FCI said it wasn’t engaged in “interstate commerce” because it doesn’t work outside Utah. It also denied the retaliation charge. Lower courts sided with the Barbers, and on August 15, the judges agreed. A whistleblower is a whistleblower, protected by law because there’s no “interstate commerce” limit on that FLSA section, they said. And FCI used so many changing pretexts for the firings, the Barbers will get more than $84,000 in back pay and damages.

• If the NLRB is going to OK a wildcat strike under labor law, it’d better explain why. That’s what a D.C. Circuit panel ruled in August in a case involving Teamsters Local 901, its six shop stewards – especially chief negotiator and union rep Jose Adrian Lopez – and Coca-Cola Bottling Company of Puerto Rico. In September 2008, after their contract had expired, more than 100 Coke workers met in a warehouse to discuss striking. They voted for a strike, but Lopez didn’t get there till after the vote. And the international union, by letter to Coke management, didn’t OK the strike. The letter also demanded Coke bargain with the local.

Coke fired the six stewards – one of whom wasn’t even at the meeting – for allegedly inciting the strike.

It also fired 86 of the workers, though it later rehired most of them after making them sign “last chance agreements” telling them they’d be permanently fired if they struck again. The NLRB ruled the firings and the agreements were illegal, saying the stewards were canned because they supported the union. The judges agreed, ordering reinstatement with back pay for Lopez and the five other stewards and tossing both the firings and the pacts. But the judges also told the board to justify its decision that the wildcat strike was legal.

“The union sent the letter” to Coke “saying the strike was not authorized” and Coke’s security guards, whom the company called, photocopied the letter and gave it to the workers. “It is unclear to us how” Coke’s “distribution of the letter affected the board’s decision” to OK the wildcat strike, the judges said. “Perhaps the board thought the striking employees’ knowledge of the union’s position wasn’t important unless it came from the union itself. But that’s just a guess, and we can’t rely on guesses.”

• If you peacefully picket, without saying a word, but holding picket signs, it’s legal. That would seem to be obvious, but the Capital Medical Center in Olympia, Wash., didn’t think so when its technical workers, represented by the United Food and Commercial Workers, set up a picket line during stalled contract talks one day in May about six years ago.

Two groups, of 25 workers each, chanted for an hour between 4 pm and 6 pm, on the public sidewalk outside the hospital. That’s legal and always has been. But two to four also took picket signs and stood silently beside a nonemergency entrance, passing out leaflets. Capital called the cops, who declined to do anything. The entrance was hospital property and Capital alleged those pickets broke labor law. It also threatened to discipline the workers.

Capital charged “employee picketing on company property is inherently disruptive” regardless of the circumstances – even if few people used the hospital entrance and there were no confrontations. The NLRB disagreed and ruled for the workers. The D.C. Circuit’s judges did, too, on Aug. 10.

“Capital did not attempt to stop its employees from handing out literature” outside the non-emergency entrance, the judges wrote. “Is employee picketing categorically different…as a blanket matter? The board permissibly answered that question ‘No.’”

Quoting a prior Supreme Court ruling, they added: “Picketing is often neither coercive nor disruptive” and the board “needed to look no further than this case for an example” to prove it. If it is – “which wasn’t the case here” – hospitals could legally bar picketing.

But to end future confusion, the judges had one recommendation: They told the NLRB it should “develop principles, on a case-by-case basis, that will guide employers about the circumstances in which they can prohibit picketing on company premises.”

• A charter school isn’t a political subdivision of a state – unless the state can hire and fire the teachers. Thus, teachers can organize. Under its own law, Louisiana can’t hire and fire charter teachers, the 5th Circuit Court of Appeals in New Orleans ruled Sept. 21.

That means the United Teachers of New Orleans could successfully organize the city’s International High School – one of the 90 percent of New Orleans public schools that are now charters – in 2009.

The case comes out of the aftermath of Hurricane Katrina, which wrecked New Orleans, including its schools. The state took them over and, responding to pressure from the pro-privatizing GOP George W. Bush administration, converted all but a few to charters, and fired the teachers, too. That decimated UTNO, AFT Local 1, which has since struck back via an organizing drive in the charters.

The school district argued the charter schools are “a political subdivision” of the state, and under Louisiana labor law, exempt from unionization. The judges said “no,” because Louisiana can’t hire and fire teachers or charter board members. It can fire charter administrators, only when, in layman’s language, they’re caught with their hands in the cookie jar. The New Orleans charters are not “a political subdivision” and that’s “by design,” the judges said. That means UTNO can fairly organize, and win, the recognition election among teachers.

Ironically, the judges noted, Texas, which is also in the 5th Circuit, does control the charters by hiring and firing charter boards or shutting schools down. But since the Louisiana case only dealt with the New Orleans schools and Louisiana law, “We are not presented with, and thus do not decide, the question of whether Texas schools are political subdivisions.”

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CONTRIBUTOR

Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.