Labor law

by Jeremy Leaming

Once again a right-wing controlled federal appeals court has dealt a blow to workers’ rights. The Koch brothers and their staunch defenders of an unwieldy corporate America have yet another court action to celebrate.  

In National Association of Manufacturers v. National Labor Relations Board, a three-judge panel of the U.S. Court of Appeals for the District of Columbia invalidated a rule issued by the National Labor Relations Board (NLRB) requiring employers to post notices containing information about rights pursuant to the National Labor Relations Act (NLRA). For instance a flyer, poster or notice could inform workers of their rights to create a union, engage in collective bargaining, advocate for safe working conditions, or wage a strike. The NLRB rule also stated that companies failing to post such notices were engaging in unfair labor practices.

The three-judge panel, all consisting of Republican-appointed judges, invalidated the NLRB rule, saying it went beyond the Board’s authority, the Los Angeles Times reports. The D.C. Circuit also complained the NLRB rule amounted to government-controlled speech, saying employers covered by the NLRA cannot be forced in all circumstances to post or disseminate workers’ rights spelled out under the law. The D.C. Circuit called this “compelled speech” and said the employers “see the poster as one-sided, as favoring unionization, because it ‘fails to notify employees, …, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in the excess of the amounts required for representational purposes.’”

The D.C. Circuit is often considered the second most important court in the country because it hears an array of weighty constitutional matters, including the creation of federal regulations, like those aimed at enforcing the NLRA. The eleven-member court has four vacancies and Senate Republicans have blocked President Obama’s attempts to fill the vacancies. Earlier this year, the Senate, led by Minority Leader Mitch McConnell (R-K.Y.), again blocked the nomination of Caitlin Halligan to a seat on the bench. She has subsequently withdrawn her nomination.

The Senate Judiciary Committee has conducted a hearing on another Obama nominee to the D.C. Circuit, Sri Srinivasan. But during that hearing, Ranking Member Chuck Grassley (R-Iowa) announced legislation to cut the number of judges serving on that bench to 8. If Grassley has his way, Obama will be fortunate to get one judge placed on the D.C. Circuit.

by Alicia Plerhoples, Associate Professor of Law, Georgetown University Law Center

I recently had the privilege of participating in a meeting of some leading and well-respected labor attorneys and scholars. Many questions were posed. With the decline of participation in labor unions, gutting of workers’ rights through “Right to Work” state legislation, and attempts to dismantle the National Labor Relations Board, what other legal mechanisms can be employed for the benefit of workers? Specifically, how can corporate laws facilitate workers’ rights? We also deliberated many possible advocacy avenues under corporate law including the following:  

Reframe the argument against Citizens United and align workers with shareholders against unchecked corporate boards and management. Citizens United v. FEC recognized free speech rights under the First Amendment for corporations, including labor unions. While some advocate that labor unions take advantage of Citizens United through increased campaign activity and spending, labor unions face an uphill battle against anti-worker groups financed by better-funded corporate interests and wealthy individuals. Rolling back Citizens United is currently part of a larger worker rights’ plan, and one way to execute that plan (and garner a broader base of support) is to align workers’ interests with shareholder interests.

The Supreme Court got Citizens United wrong by brushing aside an important corporate constituency -- shareholders. Retired Justice John Paul Stevens’ dissenting opinion was correct to argue that the majority opinion ignored the rights of shareholders. When corporations are allowed to spend unlimited treasury funds on “electioneering communications,” the corporate board chooses all aspects of the political donations -- which political groups to donate to, the timing of such donations, and whether to donate at all. Shareholders are effectively forced to contribute their money to political issues, even those that they oppose. When a shareholder invests in a corporation -- and realize that anyone in the United States whoever wants to retire must invest in corporations, whether directly or through mutual funds -- the shareholder is doing so for one purpose: to make money.