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Did the DC Circuit Court Give a Green Light for Union-Busting?


After collective action cost twenty-two cable workers their jobs, their union is charging that a DC Circuit Appeals Court ruling has emboldened employers to break the law.

George Kohl, a senior director for the Communications Workers of America, compared the DC ruling—which threw out a National Labor Relations Board decision on the grounds that its members were illegitimately appointed—to the 1981 mass firing of striking air traffic controllers: “I think that it’s a symbolic action like Reagan’s breaking the PATCO strike.”

Kohl’s union represents just under 300 workers employed by the New York City cable giant Cablevision, who won union recognition in a January 2012 vote, following a bitterly contested campaign (another group of Cablevision workers, in the Bronx, voted down unionization in a 3-1 vote last June). Thirteen months later, the workers are still without a union contract. Hostilities heightened between Cablevision and CWA a month ago, when the company terminated twenty-two union activists. Kohl told The Nation that the circuit court’s ruling “opens the door to that type of behavior, because it dilutes even further any potential recourse that workers have in our legal system…. The corporate legal ‘union avoidance’ profession is reading the decision and advising clients that this is a new opportunity for them.”

“It reeks of obvious foul play,” said Clarence Adams, who was among those who lost their jobs. “It reeks of people having their own agenda.”

The CWA has filed charges with the NLRB accusing Cablevision of illegal union-busting (the NLRB enforces and interprets US private sector labor law). But the union is warning that the DC Circuit decision will inspire more companies to copy Cablevision—and make it easier to get away with it.

In their January ruling, Noel Canning v. NLRB, a three-judge panel from the DC circuit found several of President Obama’s appointments—including those of three NLRB members he appointed in January 2012—to be illegal. At issue were the limits of the president’s authority to make recess appointments. The three judges, all Republican appointees, issued a ruling significantly narrowing that power; a Congressional Research Service report found that under the standard used in the decision, hundreds of appointments made by presidents stretching back to Reagan would have been invalidated. Under a 2011 Supreme Court ruling, the NLRB requires at least three members in order to issue decisions; without the 2012 appointments, it would have lacked a quorum for the past year.

The Noel Canning decision conflicts with rulings in other circuits on the same question, and so the issue appears destined for the Supreme Court. In the meantime, Republicans have urged the NLRB to suspend operations and have proposed eliminating its members’ salaries. The NLRB has refused, noting that the Canning decision technically applies only to a single case. One nursing home company, displeased with an NLRB injunction ordering it to rehire 600 striking workers in Connecticut, petitioned the Supreme Court to override the NLRB because of Canning decision; the Supreme Court has so far declined to weigh in.

CWA says that the uncertainty favors employers, who have much to gain and little to lose from breaking the law. To resolve the standoff, Kohl urged President Obama to take on Republican obstructionism in the Senate, and push for permanent appointees to the NLRB “on a rapid timeline.” (The January 2012 appointments rejected by the DC court followed months of Republican refusal to allow votes on Obama NLRB nominees.)

Asked whether CWA has been satisfied with the level of urgency the president brought to NLRB appointments in his first term, Kohl answered that Obama “has operated within what the system will allow him to do. And now that the system has been changed, or the rules have been changed on him, he needs to act differently and move the confirmations of the NLRB [members] to the top of his list, not in the middle.” As for Senate Majority Leader Harry Reid, who recently opted for a bipartisan compromise rather than a more muscular set of filibuster changes backed by CWA, Kohl said, “We think that the NLRB confirmations will test him, and his commitment to create a functional Senate.”

By hamstringing the NLRB, charges CWA, Senate Republicans are providing aid and comfort to union-busting companies like Cablevision, which the union alleges has been intentionally stonewalling contract negotiations as part of a campaign to convince workers to vote out (“decertify”) the fledgling union there. “This is the worst union-busting campaign I’ve seen in thirty-five years in the labor movement…” said Bob Master, who directs legislative and political mobilization for CWA District 1. “I’ve never seen a situation where twenty-two people were fired in an effort to terrorize a workforce of several hundred.”

Those terminations took place on January 30. That day’s showdown began around 8 am, when about fifty workers gathered at a Cablevision garage to request a meeting with management. Adams, a fourteen-year Cablevision employee, says that he and his co-workers, some of whom were on the clock, showed up planning to take advantage of the company’s “open door” policy to ask management to negotiate in good faith and stop pushing workers to decertify the union. Adams told The Nation that the group was told that Cablevision Vice President Rick Levesque was busy in a meeting, and so the workers waited for about forty-five minutes. “They never told us to go to work,” said Adams. Instead, he said, “they made us feel like eventually someone will be with you.”

According to Adams, when the group finally concluded that no manager was going to talk to them, and began to leave, Levesque appeared and asked twenty-two of the workers to come into his office, where he told them they were all being “permanently replaced.” (Other workers have shared similar accounts with The New York Times and other media.) “I was obviously shocked,” said Adams.

Cablevision doesn’t deny that the union action cost the workers their jobs. But it says the workers weren’t fired—rather, says the company, they were “permanently replaced” while on strike (workers say they weren’t on strike, and that they weren’t told they were being replaced until they were already leaving).

In an e-mailed statement, a Cablevision spokesperson accused CWA of mounting “a campaign to mislead public officials and damage Cablevision’s reputation,” said that it was “negotiating in good faith” with the CWA, and said that “virtually all” its employees “enjoy a direct and positive relationship with the company.”

In City Council testimony on Tuesday, Cablevision Executive Vice President of Government Affairs Lisa Rosenblum defended the terminations, saying that the workers had “repeatedly refused to work, despite repeated requests that they do so,” and that “the company took appropriate legal action to protect its operations.” Rosenblum added that “since the work stoppage, six individuals have already been brought back,” and said that the others will get their jobs back “as soon as openings occur in Brooklyn.” Cablevision declined The Nation’s request to comment further on the incident.

Pro-labor advocates have long charged that the NLRB’s slow process and limited punishments do little to protect workers like those at Cablevision—even when the Labor Board’s legitimacy is intact. Interviewed last year, CWA President Larry Cohen said, “This labor law is a scam…. It is garbage…. It’s a fucking lie.” But CWA says the DC Circuit decision, which was issued five days before the Cablevision terminations, has made the situation even worse.

Labor attorney Moshe Marvit, a fellow at the Century Foundation, said that while the NLRB “is often really weak” anyway, Noel Canning strengthens employers’ hands. Now, even if a union wins a favorable NLRB ruling, said Marvit, employers can delay or avoid complying by instead going to court to challenge the NLRB members’ legitimacy. “Even if they lose, they’ll get the usual slap on the wrist,” said Marvit. “So it’s kind of in their best interest to even openly violate the law here.”

Marvit suggested that a hamstrung NLRB, and emboldened employers, could potentially inspire some unions to push the limits of labor law themselves, defying the law’s limitations on strikes and picketing (among the prohibited forms of protest: striking one company for doing business with another company where workers are on strike; picketing for over a month in order to win union recognition). “It might give unions an opportunity, too,” said Marvit, “to try alternative means that are outside the law.” Asked about that possibility, CWA’s Kohl answered, “That’s an interesting question that I hadn’t thought about.”

Over the past month, CWA has turned to a range of pressure tactics to punish Cablevision for the terminations, including rallying with New York City’s leading Democratic mayoral candidates, and asking the city to cut off its franchise agreement with the company. Meanwhile, Cablevision announced that employees have petitioned the NLRB to hold a decertification vote, which could leave Cablevision once again union-free.

In the lead-up to last year’s union election, said Adams, “They tried so hard to get us to be afraid. They used intimidating language to us, they never spoke to us like men and women, they just made everything always look like we were going to lose.” Now, he said, the terminations have led some workers to change sides.

“Guys that were behind you 100 percent are now signing decertification [petitions] because they don’t want to end up like the twenty-two guys that got fired…” said Adams. “I guess the employers feel like they can do and say whatever they want.” 

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