Today the U.S. Supreme Court ruled that the President’s “recess” appointments to the National Labor Relations Board (NLRB) were unconstitutional, thus making all of the decisions made during the period of those appointments void or open to challenge so that they must be heard again.
Three recess appointments were made January 9, 2012. A full board made without those appointments was put into place on August 4, 2013. Other recess appointments were made to the NLRB in April 2010 and the right wing is challenging decisions as far back as that time.
Noel Canning: an anti-union company
The “Noel Canning” case that the Court decided today refers to a company based in Yakima Washington. Noel Canning is a corporation that buys concentrate from Pepsi then mixes and packages it and ships it to Noel Corporation’s Pepsi-Cola Bottling Co operations.
Some time ago the workers organized a union to have a voice on the job, affiliating with Teamsters Local 760 which represents 5000 workers in a wide range of private and public jobs in Yakima Valley and Central Washington. The Noel Canning workers are production and maintenance employees in a number of classifications such as warehouse employees, quality control mixer, maintenance workers, mechanics, etc.
In the summer of 2010 they sat down with the company to work out terms for a new contract on wages, hours and benefits.
Business has been good and the company has been expanding. When they got to the bargaining table in 2010, they naturally expected to get raises rights and benefits in accord with their key role in the company. Instead they were confronted by the owner who twice during bargaining, “threw up his hands and said if you just get out of the Union, I’ll give you anything you want.” And while he claimed to want to give them anything they wanted, he tried to insist on changes to pensions and health insurance that almost no worker wanted.
The anti-union stance of the company was clear. They wanted to weaken the workers by enticing them to leave the union. Despite that, on December 8, 2010, the union and company finally reached a deal. The terms were then voted on by the union. But instead of signing the contract, management refused to sign and refused to abide by the terms that they had agreed to.
The Labor Board found management had acted illegally in the course of bargaining and in particular by not signing the contract and by not living up to its terms. That decision was issued on February 8, 2012.
Broad impact on workers across the country
The Supreme Court decision today not only throws out the one Noel Canning case but hundreds and perhaps well over a thousand other cases. The New York Times referred to 436 decisions plus 100 more still in the Court pipeline. The Wall Street Journal uses a similar figure. But the Chamber of Commerce has a list of over 1300 cases and the right wing National Right to Work Foundation uses a figure of 1058 for the a narrow window of time and 1718 cases going back to recess appointments in 2010. The fact that there are so many estimates means that those who want to attack worker rights will be litigating this for a long time, challenging many, many cases.
Behind the numbers and the legal procedural debate over the next steps are the rights that are at issue. For example:
HealthBridge, a nursing home with six facilities in Connecticut
In March 2011 the Board ruled that they violated the law when they fired housekeepers, threatened employees and delayed in furnishing the union, SEIU with information. In 2012, despite a union contract, the company unilaterally cut benefits and ended the pension plan. The workers went on strike and the company fired nearly 700 of them. In December 2012 a judge ordered that the strikers be reinstated. In March 2013 a court signed off on a bankruptcy reorganization plan despite objections from the NLRB and
the union. In 2014 the NLRB ruled that management’s ban on employees wearing buttons hailing a NLRB decision in their favor was illegal. This complicated web of legal actions highlights the struggle that workers face, the relief that they seek as well as a NLRB decision that is at risk of being overturned now because of the Noel Canning case.
Banner Health System, a 20 hospital giant based in Arizona
Banner banned employees from talking to others about their pay or discipline). In this case James Navarro was disciplined when he questioned then refused to use hot water from a coffee machine to clean instruments to be used in surgery. He was concerned about patient safety. The NLRB ruled in his favor but that decision is at risk now because of the Noel Canning case.
COSTCO tried to restrict an employee’s right to discuss wages and conditions of employment with others including a union. They even wanted to restrict an employee’s right to comment on a store manager in a way that damages their reputation. The NLRB’s decision in favor of the employees is at risk in the wake of the Noel Canning Supreme Court decision.
Precedents at risk
The impact of this decision goes well beyond the decisions made by this Board during the period in question. A number of these decisions set precedents or were referred to as a basis for other decisions, a matter that may impact decisions made after August 2013. For example Hispanics United of Buffalo fired employees for posting a comment on a Facebook page. One such comment at issue was, “Lydia . . . feels that we don’t help our clients enough . . . . I about had it! My fellow coworkers how do u feel?”
The NLRB ruled that the firing of the five workers was illegal and it set a precedent about free speech rights. While an attorney for Hispanics United said that the case is now settled, other companies may argue that there is no precedent since that decision was arrived at by a Labor Board with members appointed during a recess period.
The rights and lives of tens of thousands of workers are impacted by the Supreme Court decision. Just as the Noel Canning workers faced an employer trying to entice them out of a union then not signing a contact or honoring its terms, there are other workers who have been fired for standing up for their rights. There are other companies which illegally stopped recognizing the union. They have all waited years for justice to be done and now they will have to wait years longer for re-hearings and decisions.
Much of the commentary on this case has to do with how a recess is defined in the constitution, what the powers of the president are, what the impact of filibusters on nominations has been, etc.
As interesting as some of that might be, the real issue that is exposed by this case is who has power in society. U.S. government processes and structure have evolved over time but underlying all of the changes is the fact that the tweaks and changes are over how to keep workers and oppressed people in their place. At times the struggle of the workers has been so strong that new laws, institutions and programs are put into place as concessions to a rising demand. That was true in the 1930s during the period when the NLRB was created. In these cases process are put into place not just to give into the struggle but also to put a cap on it and to divert it into frustrating channels. In most cases, progressive concessions are later undermined by underfunding, understaffing and regulations to gut the intent of what people struggled for.
When President Obama came into office the right wing was furiously working to undermine anything that he might do, particularly in the field of labor. One of the tactics was to refuse to pass any of his appointments to the NLRB, even as weak as most of them were.
They used the filibuster to accomplish their ends, knowing that the rules for ending a Senate filibuster. The term “filibuster” comes from a Dutch word meaning “pirate,” a personality that wealthy Senators can identify with. Over time the number of votes need to end a filibuster has changed. For example 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60. In 2013 there was a fight over this and finally they passed a rule requiring a majority vote to end a filibuster. The pundits repeatedly said that Democrats had used the “nuclear option” to get this vote, meaning a sort of united resolve on their part to do something.
The fact that they would portray a procedural change as something on the level of a nuclear option is an indictment of their system when the real problems of the world like jobs, education, hunger, homelessness, racism and the need to stop the war drive never get resolve on that level. It is important to keep in mind that this procedural “battle” was going on during a period when they were voting for drastic budget cuts.
The filibuster has historically been used by the forces representing slavery, racism and anti-labor positions. It was used in the 1930s to stop anti-lynching bills and in the 1940s to stop anti- poll tax legislation. It was used in the 1960s to stop civil rights laws and the attempts to stop the repeal of the right-wing Right to Work law. In the 1970s it was used to stop right to picket in construction areas (Common Site Picketing). In the 1980s it was used to stop plant closing laws and laws to ban striker replacements. In the 1990s it was used against Ryan White funding. It has been used repeatedly to stop increases in the minimum wage.
But it has almost never been used in the same way and with the same determination against the right wing. That’s yet another demonstration that the system functions on behalf of the rich and powerful.
The Senate changed the rules on November 21 and one of the first votes to approve a nomination made by President Obama was on December 10. They approved the appointment of Patricia Ann Millett as a Judge on the U.S. Court of Appeals in the DC Circuit. She was had been a leader in Starbucks anti-union campaign in which people were fired for organizing. She joined Secretary of Commerce Pritzker whose family owns the Hyatt and who fought the union there. And she joined Treasury Secretary Jack Lew who fought against graduate students organizing at NYU
It is clear from all of this that no matter what the procedures are, the question of who has real power is key. The working class struggle can force much needed concessions and that is a struggle that everyone needs to put their shoulder to. But we need to keep an eye on the prize that is a government by and for the working class.
Next Monday we expect a U. S. Supreme Court decision in the Harris v. Quinn case which in many ways is a dagger aimed at the heart of the organized labor movement.