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.

The judge noted that outside-the-window recess appointments were unknown before the Civil War, meaning the founders didn’t plan them, meaning they’re unconstitutional. The fact that they’ve been standard since the 1940s, that hundreds have been made — including appointments of Supreme Court Justice William O. Douglas and Secretary of State Lawrence Eagleburger — impressed him not at all.

Sentelle admitted that a parallel federal appeals court, the 11th Circuit in Atlanta, had actually upheld those outside-the-window appointments in a 2004 ruling. In his view, the court didn’t know what it was talking about.

That’s chutzpah.

Case Three: The Chutzpah of the GOP Union-Busters.

Sentelle opened a floodgate. In April the House of Representatives voted to freeze all NLRB funding until there’s a quorum, meaning forever. In May the D.C. Circuit struck down an NLRB rule that employers must post notices telling workers of their right to form a union. The judge, A. Raymond Randolph, a George H.W. Bush appointee, ruled that it violated the employers’ freedom of speech — meaning their right not to post on their shop walls statements they disliked.

On June 13, House Republicans introduced two new bills overturning existing NLRB rulings on election procedures and bargaining units. The next day, June 14, the NLRB’s poster rule was overturned again, this time by an appeals court in Richmond, Va. The judge, Allyson Duncan, a George W. Bush appointee and onetime Clarence Thomas aide, ruled that the board has no legal authority to make rules at all — it can only oversee elections and respond to complaints.

The board argued that the law defines its mission as protecting employees’ rights to organize and as “encouraging” unionization — and gives it explicit authority “to make, amend, and rescind… such rules and regulations as may be necessary” to do its job. Duncan wasn’t impressed. That’s chutzpah.

What’s going on here? Some House Republicans say they need to “counter the NLRB, which has become an activist pro-labor group under President Obama.” They say the board is supposed to be “a referee between management and unions.”

In fact, that’s the opposite of what the law says. The board exists, the labor act says, to balance “the inequality of bargaining power” between employees exercising their rights and employers who hold the cards. It’s there to defend and encourage unions.

The notion of the NLRB as unbiased referee was brought to Washington in 1981 by the Reagan administration. Reagan openly aimed to tip the balance back to pre-New Deal days and to put business back in the driver’s seat. He succeeded. Encouraging unions has disappeared from the national agenda. By no coincidence, union membership in the private sector, the core of the economy, has dropped to just 6.6% today from nearly 20% of the workforce in 1980.

No coincidence, either, that with declining union bargaining power came skyrocketing income inequality. Companies could spend less of each dollar on wages and distribute more in profits and executive pay.

Growing numbers of Americans are alarmed at our widening inequality, stagnant wages and narrowing opportunity. That scares the GOP and its business allies. They see themselves as victims.

Sort of like that orphan.

Contact J.J. Goldberg at goldberg@forward.com


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