Organized Labor and the Chutzpah of Power

How Republicans and Big Business Cheat Working People

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By J.J. Goldberg

Published June 24, 2013, issue of June 28, 2013.
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What’s your definition of “chutzpah”?

The classic case involves the kid who murders his parents, then begs for mercy as an orphan.

Lately, though, I’ve discovered a few cases that bring the concept into sharper focus. The truth is, they add up to one big story, in which the American labor movement — and the broader American commitment to fair play for working people — play the part of those poor parents. Let’s examine the cases, one at a time.

Case One: The Chutzpah of Cablevision.

On January 26, 2012, the 282 technicians of the telecom giant’s Brooklyn division voted 2–1 to join the Communications Workers of America. They would be the first Cablevision employees ever to unionize.

Cablevision agreed to recognize the union and begin negotiating a contract, but over the next year, the union claims, the company acted repeatedly to stymie talks and discredit the union: reducing service, giving raises to everyone but the Brooklyn techs, threatening Bronx techs with punishment if they voted to unionize. The company denies the accusations.

In January, two dozen Brooklyn technicians asked to meet with an executive. They were kept waiting for nearly an hour, then were fired for failing to report for work. They were later rehired, but tempers were heating up. In April, two regional offices of the National Labor Relations Board charged the company with violating labor law. The case goes before an NLRB administrative law judge in July. On May 23, Cablevision President and CEO James Dolan was quoted as saying he looked forward to the hearing, certain he’d be vindicated.

Seven days later he went nuclear. Cablevision sued in the D.C. Circuit federal court of appeals to block the July hearing. The company claims that the labor board lacks a required three-member quorum, and so everything it does is illegal.

Some background: Under the 1935 act that created the labor board, a five-member governing committee, which is also called “the board,” governs the agency. All five members require Senate confirmation. Any action requires a minimum of three.

That’s a tough number to meet. Republicans have been blocking new nominations since the summer of 2010. President Obama has filled empty seats by making so-called recess appointments — emergency, no-confirmation nominations allowed when the Senate is in recess.

In January, though, the D.C. Circuit voided Obama’s recess appointments. It said the Senate was in the wrong kind of recess. Seriously. Yet without a quorum, anything the board did was void.

Cablevision’s suit ups the ante. It claims “the board” refers not just to the five members, but also to the entire agency and all its regional offices. Everything the board does is invalid until the Senate approves new board members. Which it won’t, as long as the GOP has anything to say about it. That’s chutzpah.

Case Two: The Chutzpah of the Federal Courts.

This is one for the books. To see real chutzpah in action, watch the above-mentioned D.C. Circuit court of appeals. It’s often called the nation’s second most powerful court, with jurisdiction over key federal agencies. It’s also notoriously conservative. Until a few weeks ago, the Senate wouldn’t let Obama fill vacancies, so it’s missing three of its 11 judges. This is the court that invalidated the NLRB for being understaffed.

The court’s January recess-appointments decision involved a PepsiCo Inc. bottling plant, Noel Canning, that was accused of ignoring its union contract. The NLRB administrative judge agreed. Noel appealed to the national board and lost. It then appealed to the D.C. Circuit, claiming the NLRB didn’t have a quorum.

The circuit judge, David Sentelle, a Reagan appointee, produced a ruling worthy of Groucho Marx. He agreed with the NLRB that the company wasn’t honoring the contract. But the company was right that Obama’s recess appointments were invalid, meaning there was no quorum, so the NLRB couldn’t do anything about it.

What made Obama’s appointments invalid? Well, the Constitution says the president may “fill up all Vacancies that may happen during the Recess of the Senate.” Sentelle decided that “the Recess” was different from a mere “recess,” based partly on 18th-century uses of “the.” He concluded that recess appointments are permitted only during a brief window, from late December to January 3, in alternate years. Obama acted on January 4. Tough break.


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