Who a president puts on the bench matters much in the lives of workers

In the final presidential debate John McCain boasted that he would appoint judges based on experience and he castigated Barack Obama for wanting to appoint judges “who have a liberal philosophy.”

Obama answered that a court appointee must have certain beliefs that include a sense of fairness for all individuals and groups in our society. He used the example of Lilly Ledbetter, who sued Goodyear because it paid her less than it paid men who did the same work. Obama said it was poorly chosen Supreme Court justices who ruled that her lawsuit was no good because it came more than 150 days after she was hired, even though she didn’t know until then that she had been the victim of pay discrimination. Obama implied that he would have picked judges who would have ruled in Ledbetter’s favor.

The president gets to pick not just Supreme Court justices but also federal court judges for districts all over the country. Even as the last presidential debate was taking place there were cases before these courts that illustrate the importance of the issues Obama raised about picking good judges. Cases recently decided in these courts have made a world of difference in the everyday lives of workers.

Because of a good judicial appointment, workers recently won a case in Denver. The 10th U.S. Circuit Court of Appeals there ruled Oct. 1 that Wal-Mart had changed the hours of its pharmacists, Steven Justice and Ghassan Abdalla, so frequently between 1993 and 1998 that they were, in fact, hourly employees and not “salaried.” The ruling means that, unlike “salaried” employees, they are entitled to time-and-a-half pay for all the overtime hours they worked.

The case shows not just the importance of appointing fair judges but also of the 10 federal courts themselves. With the U.S. Supreme Court hearing fewer and fewer cases each year, more cases involving worker rights are now decided in the federal courts.

Companies use an almost incredible variety of tactics to bust unions.

A federal court in Indiana recently sorted out and ruled in favor of the workers in one of these situations.

There was a newly organized unit of Teamsters Local 716 at Spurlino Materials Co. in Indianapolis last year when the company was helping build the Colts’ new football stadium. On the surface everything looked OK. A project labor agreement covered the construction, and Spurlino followed it by paying the required higher wages for work done on the stadium. Spurlino still wanted to bust the newly organized union, however. The first step it took to achieve this goal was to deny the higher paid assignments to the three cement truck drivers — Ron Eversole, Gary Stevenson and Matt Bales — who had led the Teamsters organizing drive. The company ignored seniority and used a variety of methods to steer the more lucrative assignments away from the union organizers. Fearing the same might happen to them, other drivers in the 35-member unit started to stay away from union meetings, thus weakening the unit considerably.

The Teamsters complained and the National Labor Relations Board in Indiana ordered Spurlino to cease discriminating against the union organizers.

Spurlino sued the NLRB in the 7th U.S. Circuit Court.

The court ruled against Spurlino, in favor of the NLRB and the workers. The ruling noted that the company was trying to weaken the Teamster unit so it could stall in meeting its responsibility to bargain with the union. The court said: “The longer an employer is able to chill union participation or avoid bargaining, the less likely it is the union will be able to organize and to represent employees effectively. The risk is particularly true in cases involving fledgling unions, where passage of time is critical.

“The court, noting the precipitous decline in union participation, credits the testimony of many Spurlino employees who stated they were hesitant to attend union meetings because they feared discrimination. If Spurlino is allowed to proceed in its quest to defeat the union before it becomes firmly established, then merely requiring the company to pay its employees damage after the fact will not remedy the adverse impact to the union and the employees.”

Not all the cases before the federal courts go so well for the workers. An appeals court in California ruled Oct. 9 that it is OK, at least in Los Angeles, to pay teachers less than the minimum wage.

Ernest Kettenring, an adult education teacher, sued the Los Angeles school district for having underpaid him. The district pays its adult ed teachers a regular periodic amount called a “salary.”

The time he spent preparing lesson plans and performing assignments outside the classroom caused him to spend many more hours than the number used to calculate his flat rate or “salary.” On an hourly basis he actually earned less than the required state minimum wage.

The trial court ruled that the state minimum wage provisions did not apply to the school, district, because adult education teachers “fall within the professional exemption” of state law. The appellate court agreed and the workers lost an important battle.

In another blow to workers, the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled Sept. 9 that an employee could not recoup back taxes she paid when she was wrongfully classified as an “independent contractor.”

Carrie Umland worked for Hartford Insurance as an “independent contractor” from 2000 to 2003. Companies frequently use the “independent contractor” loophole to evade paying Social Security taxes, Medicare and workers’ compensation.

In Umland’s case, however, the company withheld 15.3 percent of her pay, the equivalent of the employer’s and employee’s share of Social Security taxes. When it signed her onto a new employment contract the company asked Umland if she wanted to be classified as an “employee” instead.

She agreed. In such cases the company is allowed to withhold only the employee’s share, 7.65 percent of the taxes. The company continued to withhold 15.3 percent and Umland sued on behalf of herself and others similarly ripped off.

Incredibly, the appellate judges ruled against her and her co-workers. For the time she was an “independent contractor,” the court said, she was not misclassified because she had agreed to that status. Since then, they ruled, federal law bars her and the others from suing the company for over-witholding. Only the Internal Revenue Service, the court ruled, which gets the tax money from company withholdings, can do that, the judges said.

These are only a few examples of why labor unions have included the issue of court appointments on the long list of concerns they have regarding the presidential election. While the McCain campaign has framed many of the court cases of interest to the labor movement as “boondoggles for trial lawyers,” unions and workers see the courts as an important arena in the struggle for workers’ rights. It’s one of the many reasons they have for fighting for the election of Obama.

PAI contributed to this story.