Musicians’ defeat of Trump’s leafletting curbs shows importance of appeals courts

SAN ANTONIO —The Trump-named anti-worker National Labor Relations Board majority hit a very sour note this year when it tried to use a case involving Musicians Local 23’s informational leafletting to write new national restrictions on workers exercising their rights.

The 3-0 ruling on Aug. 31 by the D.C. Circuit Court of Appeals called the board’s limits “arbitrary and capricious.”

The ruling was yet another in a long line of federal appellate court defeats for the former GOP Trump regime and its constant attempts to write agency rules, which have the force of law, in favor of the corporate class. NYU’s Institute for Policy Integrity, which tracked such rulings, reported the Trump government lost such cases 77% of the time (59 wins, 200 losses).

But the ruling in the San Antonio case reinforced another point. With the U.S. Supreme Court taking fewer cases every term, and with what AFL-CIO General Counsel Craig Becker calls its decades-long track record of ruling along partisan lines against workers’ rights, heading for the federal appeals courts is increasingly important to workers seeking justice.

That’s what Local 23 did when it got into a dispute with San Antonio symphony bosses during a shortened 2019 season. The orchestra’s board, citing financial problems, cut pay by reducing the season. That signaled other performing arts groups who used the symphony’s most frequent performance space, the Tobin Performing Arts Center—and who hired Local 23 members when the symphony wasn’t playing there—that they could stiff the musicians, too.

The Houston Ballet did so. It replaced Local 23 members with recorded music for performances of Sleeping Beauty. The musicians, standing in the center’s plaza, handed out leaflets to ballet attendees, urging them to pressure the ballet to hire live performers instead.

Or, rather, they tried to, three times. Security guards told the musicians they couldn’t leaflet there and sent them across the street. Local 23 called it labor law-breaking, restricting their rights, and took the case to the NLRB. The Trump-named NLRB majority ruled for the center. It used the case to let all bosses restrict picketing and leafletting, reversing precedent.

The whole mess wound up before the D.C. Circuit, where Chief Judge Sri Srinivasan gave Local 23 a win—and said Trump’s board majority was way off-key (though he didn’t use those words).

“The board majority…announced a new standard that broadens the circumstances in which a property owner can prohibit an onsite contractor’s employees from accessing the property for labor organizing activity,” he wrote. The Trump majority’s new standard allowed picketing or leafleting on-site by only “those employees (who) work both regularly and exclusively on the property” and only if the owner can’t show workers have at  least one “reasonable non-trespassory alternative means to communicate their message.”

The Tobin Center management flunked even those strict standards, and so did the NLRB Trump majority’s standards themselves, the court ruled. It threw them out.

Decision is “arbitrary”

“The board’s decision is arbitrary in the way it implements its new standard for determining when a property owner may prohibit an onsite contractor’s employees from conducting labor organizing activity on the premises,” wrote Sinavasan. It’s capricious because the Trump-named board majority “fails to explain how the approach it newly introduces… corresponds with an employee’s connection to the property in any relevant way.”

The San Antonio case is one instance where federal appeals courts upheld workers’ rights. But sometimes judges didn’t. Trump stacked the courts, from the Supreme Court on down, with young right-wing ideologues.

Either way, lawyers for workers and bosses in federal appeals courts often use rulings from other federal appeals courts to argue their cases. And the D.C. Circuit’s rulings on agency rules cases apply nationally.  That makes the mixed bag of appellate rulings for workers through August 2021 relevant. Other interesting cases include:

Four mining lobbies tried to roll back tougher mine safety standards. They lost.

In a Jan. 22 decision, judges of the 11th Circuit Court of Appeals in Atlanta declared the Mine Safety and Health Administration’s new mine inspection rules passed muster under the MSHA act. “The new requirements plainly improve on the 1979 (inspection) standards with respect to each new requirement” the four lobbies, including the National Mining Association, challenged.

One new standard changed shift inspection times from once per shift to once before each shift (emphasis in the decision). The second orders bosses to immediately notify individual miners of hazards, and the third required inspectors’ signatures, making follow-up easier. “The requirement miners be notified promptly of any such hazard obviously avoids risks to miners, enabling them to take protective measures to avoid the risk,” the judges added.

A company can’t keep saying it’ll kill jobs—making a recognition election moot—and then not do it, but still ban the election.

The American Bottling Company in Northlake, Ill., said three times it would cut sales service rep jobs at the plant, making a representation vote for Teamsters Local 727 unnecessary, because there would be no workers to represent.

But it didn’t eliminate the jobs. It threatened to do so a fourth time on July 21, 2019, after saying three times before that it would really, really, really eliminate the jobs. The union had had it. Local 727 took the case to NLRB Chicago Regional Director Peter Sung Ohr. He didn’t believe the company, either, and allowed the vote, which the Teamsters won 46-16. Neither did the D.C. Circuit’s panel, when the bottling firm went to court:

“The board’s conclusion was consistent with its own precedent. The board will not dismiss an election petition based on conjecture or uncertainty concerning an employer’s future operations, an employer’s contention it intends to cease operations or reduce its workload sometime in the future, or evidence of cessation that is conditional or tentative.”

If you allege your boss illegally withheld overtime pay, you get two years to sue. If you present some facts, you get three.

The 2nd U.S. Circuit Court of Appeals in Manhattan said so to Homer Whiteside on April 27 in his case against Hover Davis, Inc., upholding a lower court ruling. After 13 years as an engineer exempt from overtime pay, Hover Davis switched Whiteside in 2012 to be a “repair organization technician” until January 2016. That’s a salaried job whose occupant is eligible for overtime pay. But bosses didn’t pay Whiteside overtime, despite 45-50 hour workweeks. Then they switched him back to being an engineer—before he went on disability to treat cancer. He left in 2018 and sued in 2019 for unpaid OT.

Too late, Chief Judge Debra Ann Livingston said. “A plaintiff must allege facts at the pleadings stage that give rise to a plausible inference that a defendant willfully violated the FLSA (Fair Labor Standards Act) for the three-year exception to apply, and Whiteside’s allegations fail to give rise to such an inference here,” she wrote in the 2-1 panel decision.

“Clean shaven” means what it says, especially for firefighters wearing respirators.

That basically is what an Occupational Safety and Health Administration rule for workers needing respirators on the job says, and it overrides an Americans With Disabilities Act discrimination claim. The Fire Department of New York switched Black firefighters Talik Bey, Terrel Joseph, Steven Seymour, and Clyde Phillips to light (desk) duty because they have pseudofolliculitis barbae (PFB), a skin condition “which results in persistent irritation and pain following shaving.” It affects 45%-85% of Black men in various ways, studies show.

The recommended treatment is not to shave all the way down to the skin. But not shaving all the way down breaks the “seal” designed on respirators to protect firefighters from toxic fumes, the Fire Department argued. The four responded the ADA means the Fire Department should adjust its beards ban as an accommodation under the law. Second U.S. Circuit Court of Appeals Judge Richard Sullivan said “no.” OSHA’s standards for respirators require users “to be clean shaven and we can end our analysis here,” he wrote on June 9.

If accommodating one worker’s religious preference harms too many others, the worker loses.

A panel of three Seventh U.S. Circuit Court of Appeals in Chicago said so in a March 31 decision involving Seventh Day Adventist Edward Hedican, the 24-7 Walmart store in Hayward, Wis., and the federal Equal Employment Opportunities Commission.

In April 2016, HR Manager Lori Ahern offered Hedican an assistant manager’s post. He accepted, then told her his religion barred him working from sundown Friday to sundown Saturday. She realized it put more of a burden on the other seven assistant managers and threw the store schedule out of whack. Ahern yanked the offer. Hedican went to the EEOC, which enforces the 1964 Civil Rights Act against discrimination on the basis of sex, race, gender, religion, or other reasons. It filed a failure-to-accommodate suit against Walmart.

The judges sided with Walmart, saying harming the others and messing up the work schedule places “an undue burden” on the firm. Besides, they added: “The Supreme Court held Title VII” of the law “does not require an employer to offer an ‘accommodation’ that comes at the expense of other workers.”