Ruling on labor practices shows importance of appeals courts to workers

A court ruling earlier this year that virtually rewrites “unfair labor practices” – labor law-breaking – in Louisiana, Texas and Mississippi shows, once again, the importance of lower federal courts, especially appeals courts, for workers and their rights.

The ruling, by the 5^th U.S. Circuit Court of Appeals in New Orleans, involves a subcontractor, Creative Vision Services, Inc. A garbage disposal firm hired Creative to in turn, hire “hoppers” – the guys who hop on and off the back end of the trucks to grab big trash cans and dump their contents into the truck’s hopper.

The fate of those worker “hoppers” and their union contract is now in the hands of the appellate judges, as are so many other workers’ rights.

That’s because while the U.S. Supreme Court’s worker rulings apply nationwide, the High Court rejects most cases brought to it. That leaves worker rights in the hands of the appeals court judges. And while their rulings initially apply only in specific states, attorneys working both for and against workers cite those decisions elsewhere around the U.S.

In this case, Creative took over the subcontract in 2010 from another firm, which had signed a contract with Service Employees Local 32BJ to represent the hoppers. But Creative refused to recognize and bargain with the union, as a successorship clause in the pact orders.

The case wound its way through the National Labor Relations Board, whose general counsel – its chief enforcement officer – went to court to get a 10(j) injunction against Creative, ordering it to recognize and bargain immediately. The counsel cited labor law-breaking against the hoppers due to Creative’s defiance. The U.S. District Court approved the injunction; the appeals court reversed that decision and bounced it.

“This will make it much harder for the NLRB to rein in employers who flout the law,” says Andrew Strom, associate general counsel for 32BJ, in a guest post in the On Labor blog. “The standard of review when a district court grants a preliminary injunction is supposed to be a deferential ‘abuse of discretion'” by the lower court, he explained. “In finding the district court abused its discretion, the 5^th Circuit invented a new standard out of whole cloth.”

The appeals court ruled that a “10(j) injunction may only be employed in the event of ‘egregious’ unfair labor practices, which it defined as those violations that ‘lead to exceptional injury as measured against other unfair labor practices.'”

And the appeal judges “did not explain how Creative Vision’s work force or the union suffered egregious or otherwise exceptional harm,” from the firm’s defiance.

Labor law “says nothing about Section 10(j) being limited to ‘egregious’ cases,” Strom continued. Even in other cases, the 5^th Circuit judges have granted injunctions in company labor law-breaking, saying “it is not so much the magnitude but the irreparability” of harm to the workers “that counts for purposes of a preliminary injunction.”

Usually, in such cases, the NLRB orders a firm to bargain with the union, Strom said. But the board uses the 10(j)s to lessen the negative result on the workers from the economic benefits an employer reaps for its prior defiance. The 5^th Circuit’s ruling in McKinney vs. Creative Vision Resources would make it harder to get such 10(j)s and would encourage more employers to defy the law, Strom predicted.

The case of the trash truck hoppers isn’t the only one where appeals courts ruled on workers’ rights and legal protections, or plan to. Other notable cases include:

• Can a state agency discriminate on the basis of gender? In Washington state prisons, it can, the 9^th U.S. Circuit Court of Appeals ruled. Teamsters Local 117 sued the state’s prison system for creating female-only jobs at the prisons “without undertaking a proper analysis…to determine whether being female was a bona fide qualification” for each position. The local said that lack of analysis violates the 1964 Civil Rights Act’s ban on gender-based discrimination. Lower federal courts upheld the female-only jobs and the 9^th Circuit agreed. “The agency was justified in making certain positions female-only in an effort to reduce rampant abuse of inmates,” its judges said.
• Can a company ban the union safety rep from an OSHA investigation of a fatal accident? That’s what Caterpillar, Inc., is arguing before the 7^th U.S. Circuit Court of Appeals in Chicago. Cat says “its property interest trumps the employees’ need to have the union’s specialist visit to ensure their safety and that the union could make do with photo-graphs, video, and various reports.” The Steelworkers, and the NLRB’s general counsel say Cat is wrong and broke labor law by barring the union’s specialist.

In September 2011, a crawler frame at Cat’s South Milwaukee, Wis., plant, pivoted and crushed crane operator Jeffrey Smith to death. Steelworkers Local 1343 officers participated in the initial OSHA and police probes and notified USW headquarters in Pittsburgh. USW sent Sharon Thompson, a member of its special Emergency Response Team – the safety and health division of USW that probes all such fatal accidents – out to the plant. Cat wouldn’t let her in, even though federal job safety and health law says workers can designate an outside prober to represent them in such cases. OSHA fined Cat, and the local filed a labor law-breaking (unfair labor practices) charge against the company.

“Substantial evidence supports the conclusion the company’s property rights must yield to its employees’ right for responsible representation,” the NLRB is arguing before the judges in Chicago. “Precedent and the evidence establish that information the union sought via access to the facility was relevant and necessary to represent the employees. The board found the company did not satisfy its burden to demonstrate its property rights should predominate over its employees’ representational rights nor that the union could effectively represent employees by some alternative means.

 “The employees cannot rest their safety on the company’s confidence that another accident will never occur. Thus, enforcement of the board’s order” to find Cat guilty of labor law-breaking and to let Thompson in “is still relevant today…Its years of unlawfully preventing the Union’s access should not be rewarded.”

• Can a company refuse to bargain, close the affected unit, let the workers go, and then stiff the union on bargaining expenses? In the case of National Nurses United and Fallbrook Hospital in California in 2013, the NLRB said “no.” In May, the 9^th U.S. Circuit Court of Appeals in San Francisco agreed.

Fallbrook management refused to bargain with NNU over working conditions in its acute care unit in 2014 – and then announced it would shut the unit down, which it did in December, letting everyone go. NNU filed labor law-breaking charges, basically saying Fallbrook did not bargain in good faith. The National Labor Relations Board agreed. It ruled that not only did Fallbrook break the law but that its actions were so bad it must reimburse NNU for its legal bargaining expenses. The hospital refused to pay and the NLRB went to court.

The judges quoted Fallbrook as contending that part of NLRB’s award of bargaining expenses to NNU is “to redress the effect of Fallbrook’s past misconduct” and the other part is “to provide the union prospective strength at the bargaining table.” Fallbrook said it’s willing to pay the first part, but not the second. “Fallbrook claims the latter purpose can no longer be served because of the closure of the acute care unit, and, therefore, a principal justification for the board’s remedy has been undercut. This is a specious argument and we reject it,” the judges said. They also called Fallbrook’s proposal “real chutzpah.”

What’s the impact of Facebook? Two separate appeals courts handed down rulings that help define what the role of Facebook is in labor law.

In April, a D.C. Circuit Court of Appeals panel ruled that Charles Weigand could not hold Amalgamated Transit Union Local 1433 in Phoenix responsible for derogatory comments on the union’s Facebook page during a strike against Veolia Transportation there. Weigand argued the Facebook page is the same as a picket line, where the union is responsible for speech and comments. The judges said “no.”

The NLRB’s general counsel said unions have “a duty to disavow” such nasty cracks, just like they must disavow picket-line misconduct. The agency’s administrative law judge ruled, and the board agreed, that “the Facebook page is in no way an extension of the picket line” and the union was not responsible for the comments there “because the individuals who posted the comments were neither alleged nor found to be agents” of Local 1433. “The disputed postings were made by persons who acted on their own without the permission of the union,” the judges said. That “is critical and dispositive.”

That same month, the 2^nd U.S. Circuit Court of Appeals in Manhattan ruled that firms break labor law when they fire workers for comments on the workers’ Facebook pages. In a case involving Triple Play, a Watertown, Conn., sports bar, the judges backed the

order to reinstate waitress Jillian Sanzone and cook Vincent Spinella, both fired in 2011. The bar fired them after they posted “likes” to a blog, on a Facebook page started by other – former – workers who discovered that Triple Play had fouled up their Connecticut withholding and that they owed far more in taxes than they thought.

“Applying well-established legal principles…the board reasonably concluded the manner in which the employees conveyed their protected messages on Facebook did not cause them to lose the protection of” labor law, the judges ruled. “Spinella’s ‘Like’ of LaFrance’s complaint that Triple Play had erred in withholding taxes, and Sanzone’s statement, ‘I owe too. Such an asshole,’ clearly indicated that they were related to a labor dispute over tax withholding on wages… The primary purpose of their communications was to correct a wage issue of great concern to the employees.” That’s protected by labor law, the judges said.

Running a freight train without a conductor – in violation of the union contract – is a major dispute under railway labor law. That’s what the 6^th U.S. Circuit Court of Appeals in Cincinnati ruled earlier this year. “Major disputes” under the Railway Labor Act can force unions to strike. The Brotherhood of Locomotive Engineers & Trainmen/Teamsters didn’t strike when the Wheeling & Lake Erie Railroad kept breaking the conductors rule. In bargaining, the railroad has been trying since 2007, unsuccessfully, to eliminate the conductors. Meanwhile, in several instances, it broke the rule without telling the union, which took it to court.

“BLET and the railroad are engaged in a major dispute,” the judges said. While both agree the contract “is silent on whether the railroad can assign only an engineer to a train when a rested contract conductor is not available, they do not agree on what that silence means. BLET contends that silence does not alter the express requirement the railroad assign at least one conductor to every train; this language can only refer to every train in every situation.” The railroad, the court said, contends it could use management employees “if no rested conductors are available.”

The judges declared that “BLET has the better argument. The scope rule of the trainmen agreement expressly requires the railroad to assign a union conductor to every train.” Citing a 1981 decision in another federal appeals court, they added: “The agreement purports to cover all of the work of the employees and apparently leaves no room for unilaterally contracting out some of the work.”

And the judges concluded that to side with the railroad “would undercut the clear language of the crew consist rule,” in the contract between the BLET and the railroad “which was expressly bargained by the parties years ago.” The crew consist rule defines crew size.

The railroad tried to convince the judges the contract’s grievance procedure would cover the dispute, but the judges tossed that argument out, too. “We cannot envision how a grievance procedure could have resolved this fundamental disagreement between the railroad and the union…BLET did not raise a claim or grievance on behalf of a particular employee… BLET challenged the railroad’s complete disregard of an express provision of the agreement while negotiations were in progress on that precise issue.”

Photo: United States Court of Appeals for the Federal Circuit.