WASHINGTON – When the nation’s transportation unions won a significant decision on union election rules, in federal appeals court in D.C. late in 2011, it emphasized – once again – the importance of courts to workers.

The common saying is, “what’s won at the bargaining table can be taken away with the stroke of a pen.” On Dec. 16, the U.S. Circuit Court of Appeals for D.C. used its own stroke of a pen to uphold union voters’ rights.

U.S. airlines tried to take away what unions won from the National Mediation Board: To have the union that wins the majority of ballots in a representation election be declared the victor – while not being required to get an absolute majority of all eligible voters, with non-voters counted as ‘no’s. The appellate judges backed the NMB and the unions and ruled against the airlines’ lobby, the Air Transport Association.

Nothing in federal law “unambiguously requires that a majority of all eligible voters select the representative of the employees, nor does it even require that a majority of all eligible employees vote for the election to be valid,” the appellate judges said in agreement with transportation unions, the mediation board, and lower courts. “Having found the statute ambiguous, the district court then concluded the board’s reading of the Railway Labor Act,” which covers rail and air workers, “was reasonable.”

Besides, the judges noted, NMB’s new rule also lets anti-union workers dump the union – the same way. “Under the board’s interpretation of” labor law covering airline and rail workers, “an abstaining majority unhappy with the outcome of a labor election can simply call for a new election and, by exercising its right through actually voting, produce a different result,” the judges said. They also noted the new ballots in transportation union representation elections will include a “no union” option.

“This decision affirmed a district court ruling that also upheld the NMB’s new rules. One of the new rule changes is that no longer will an un-cast vote in union representation elections be counted as a ‘no,'” said the AFL-CIO’s Transportation Trades Department, which filed a friend-of-the-court brief on the NMB’s side – and which had campaigned for the election rules change in the first place.

The D.C. court’s ruling symbolizes another important point for workers: With the U.S. Supreme Court hearing fewer cases than ever, the appellate courts have been for years the venue where workers win and lose. The NMB ruling was only one of several significant or interesting worker-related rulings in the last three months of 2011:

* Telling a worker to “stop worrying about the union and worry about your job” breaks labor law. The D.C. appellate court said so on Nov. 22, in a case involving SEIU supporter Trisha Miechur, a certified nursing assistant at the Manor Care Nursing Home in Easton, Pa. Manor Care unlawfully quizzed her, seized the union’s literature, and disciplined her – and only her – when she “urged Manor Care patients to support the union’s cause.” The National Labor Relations Board ruled all that broke labor law and the judges agreed.

“Manor Care admits that Miechur’s union activity was a motivating factor for her discipline. It defends on the ground that it would have punished Miechur anyway. The board’s conclusion to the contrary has ample support,” the judges said.

* Don’t cuss out your boss. You might lose labor law protection. That’s what Yuma used car salesman Nick Aguirre did in late September 2008. He suspected they were shorting his commissions and disobeying Arizona rules that set the minimum wage as a floor for commission-only workers. What was a civil conversation turned heated, and Aguirre let loose. The dealership fired him on the spot. The NLRB’s administrative law judge said the firm broke labor law in its relations with Aguirre on other counts but not when he cussed the bosses out. The board said the cussing was covered, too, but the federal appeals court in San Francisco said on Dec. 19 it wasn’t. The judges explained NLRB couldn’t call its own judge credible, then distrust her about whether Aguirre’s cussing broke labor law or not.

* Are residency requirements for municipal jobs discriminatory or not? The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled, twice, that the answer is ‘yes.’

First, Gregory Meditz, a white non-Hispanic Newark, N.J., lawyer, challenged the city’s residency requirement for white-collar workers. He argued it discriminated against him when he sought a housing development analyst’s position in 2007. Meditz cited data showing white men were underrepresented in Newark’s white-collar workforce (9.4 percent), compared to its white population (14 percent) or the white-collar workforce of Essex County (42 percent), where Newark is the county seat. He argued the relevant labor market should be six counties in northern New Jersey, and the residency requirement is illegal.

In the second case, the Newark branch of the NAACP challenged a residency requirement for five northern New Jersey municipalities whose fire departments joined together into North Hudson Regional Fire and Rescue, to help make themselves able to more efficiently hire and deploy firefighters. The group said the residency requirement had “a disparate impact” on hiring African-Americans, by bumping them off of qualified-to-be-hired lists. North Hudson replied the requirement is a “business necessity” – an allowed exception under employment anti-discrimination law – because the departments were trying to increase the number of Hispanic firefighters in an area that is 69 percent Hispanic.

The appeals court in Philadelphia threw out both residency requirements. It ruled for Meditz and sent the case back down to lower courts for trial under a new labor market standard. Newark had also argued “business necessity,” but the judges said its use of the labor market data was so skewed that it undermined the city’s argument.

In the North Hudson case, the judges said, “the NAACP presented sufficient evidence to establish that North Hudson’s residency requirement causes a disparate impact by excluding well-qualified African-Americans who would otherwise be eligible for available firefighter positions. North Hudson failed to present evidence to create any genuine dispute regarding this disparate impact or adduce a valid business necessity for the residency requirement.”

* The federal campaign against misclassifying workers as independent contractors won another round. U.S. District Court Judge Thomas Rose in Ohio ruled Nov. 3 that Cascom, Inc., illegally denied overtime pay to 250 installers of cable TV, telephone, and internet services in the Dayton area. Time Warner hired Cascom and Cascom called the workers independent contractors, not covered by any labor law – including the Fair Labor Standards Act, which guarantees overtime. The judge ruled for the workers and DOL, which now seeks $1.6 million in back wages and damages.

“Misclassification of employees as independent contractors is an alarming trend,” Labor Secretary Hilda Solis said in a statement. “The practice is a serious threat to both workers, who are entitled to good, safe jobs, and to employers who obey the law and are undercut when others use illegal practices.” This ruling may be appealed.

In 2010, then-Ohio Attorney General Richard Cordray estimated there were over 90,000 misclassified workers in trucking, home health care, construction and other industries in his state alone, costing Ohio over $350 million in lost unemployment insurance taxes, workers’ compensation premiums, and income tax revenues. The U.S. Labor Department says up to 30 percent of companies nationally misclassify some 3.4 million workers as “independent contractors.”


Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.