NLRB Abandons Poster Rule

Given the hostile climate toward employee rights in federal courts, it is not surprising that the National Labor Relations Board (NLRB) has abandoned its efforts to require employers to post a notification informing workers of their rights to join together to improve their working conditions.

The NLRB announced this week that it will not file an appeal in the pro-business  U.S. Supreme Court to overturn two federal court decisions rejecting  the so-called poster rule.

The NLRB wanted private-sector employers to hang a poster in a conspicuous place (i.e. lunch room) informing workers of their rights under the 75-year-old National Labor Relations Act (NLRA).

Many American workers today, especially recent immigrants, are ignorant of their rights under the NLRA. The poster rule is also important for non-union workers who lack a designated bargaining representative. The NLRA can come into play in non-union workplaces when, for example, an employer fires a non-union worker for discussing a safety concern with a co-worker.

It is ironic that most private-sector employers already are required by federal law to post documents in the workplace informing workers of  their rights under Fair Labor Standards Act, the Family and Medical Leave Act, equal employment opportunity laws, etc.

The poster rule elicited immediate opposition from a broad coalition of national business groups after it was approved by the NLRB in 2011.

Twenty-one Republican members of the U.S. House of Representatives joined with the U.S. Chamber of Commerce  to oppose the poster rule, including John Kline (R-Minn.) chairman of the House Committee on Education and the Workforce.

The U.S. Court of Appeals for the Fourth Circuit in South Carolina  ruled  last summer that the NLRB lacks the authority to require employers to post notices either electronically or physically in a conspicuous place. The court said “ we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.”

The U.S. Court of Appeals for the D.C. Circuit earlier ruled that the poster rule violate employers’ free speech rights.

Here are the rights that the U.S. Chamber of Commerce has worked so diligently to insure that American workers do not know they possess under the NLRA:

  •  Workers can organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
  • Workers can form, join or assist a union.
  • Workers can bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
  • Workers can discuss terms and conditions of employment or union organizing with co-workers or a union.
  • Workers can engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.
  •  Workers can choose not to do any of these activities, including joining or remaining a member of a union.

 

Roberts Tells Congress to Set Aside Politics?

Chief Justice John G. Roberts Jr. has called on Congress to set aside politics when it comes to funding the federal courts.

Oh, the irony.

In his year end report, he wrote, “The United States courts owe their preeminence in no small measure to statesmen who have supported a strong, independent, and impartial judiciary as an essential element of just government and the rule of law.”

This from a Supreme Court justice who is considered to be the most pro-business, anti-worker justice since World War II.

One cannot help but wonder how the Court hopes to rally public support when it has consistently refused to allow its proceedings to be televised and has provided virtually no leadership to encourage the use social media and internet technology to  better serve the public.  The Roberts’  court has done little, if anything,  to help the public understand the importance of the judiciary is a democratic society.

The U.S. Supreme Court who?

A suggestion for Congress  – this might be a good time to encourage the Court to open its doors to television cameras.

Moreover, the Roberts’ court appears to be terribly, woefully and sadly out of touch with the masses, tuning out the little folk who pay federal judges’ hefty salaries while providing a megaphone to the U.S. Chamber of Commerce.

Roberts is seeking $7 billion appropriation in 2014, which compares to $6.97 billion allocated last year (reduced by about  $300 million  by sequestration, after Congress gave the courts an additional $51 million in October). The Court has passed along budget cuts to federal public defender offices, clerks,  parole and probation officers.

The business of federal courts appears to be down overall.  Filings in  civil and criminal cases grew by 1 percent in 2013 but  filings in appeals courts dropped by 2 percent; filings in the Supreme Court dropped by 2.6 percent; and, filings in bankruptcy courts dropped by 12 percent.

One reason for the decline may be that  victims  of employment discrimination are foregoing the use of federal courts because of the hostility of federal judges to job discrimination claims.

A 2013 article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Roberts  and Associate Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946.  And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

 

America’s Third World Court

US Supreme Ct Insists on Obscurity

United States: The leader of the federal court system of the world’s greatest democracy, the U.S. Supreme Court, refuses to allow its proceedings to be televised.  Television is an archaic technology that dates back to the 1920s. . Refusing to be televised is akin to insisting in 1440 that the bible be pen8037-25ned by monks in ink, longhand, rather than  using the newfangled Gutenberg printing press. Our high court’s annual rulings are initially handed out on paper by the court’s public relations staff and then posted on its web site.

Meanwhile …

Victoria, Australia: The Supreme Court of Victoria this month  announced a plan to launch several new technology initiatives.  Here are some of its goals:

  • The Court will become fully paperless by 2016.
  • It is recruiting retired judges to blog for the court.
  • The court is  developing an interactive website. Viewers can watch Video on Demand, download judgment summaries and judgments, leave comments on the Supreme Court News website, and participate in an Internet Forum.
  • The Court just launched a Facebook page last week and already has a Twitter feed with nearly 2500 followers.
  • The Court plans to look at other social media opportunities such as LinkedIn.

According to the Hon. Marilyn Warren, Chief Justice of the Supreme Court of Victoria:

“It’s about openness so the community can see and know what we do in the courts, it’s also a way for the courts to make sure that the community are appropriately informed of what happens in court, the reality about the cases, not the story in the media that the editors want to put out, the community can read that, but they should know the actual facts.”

Moreover, Judge Warren notes that at one time the print media assigned skilled legal affairs reporters to cover the courts but in this era of cutbacks there are fewer and fewer court reporters to inform the public about the court’s proceedings. “The opportunity for the public to see what the courts do unmediated by journalists and editors may go a long way towards educating the public about the role of the judiciary. It is also a way of reaching younger generations,” she added.

Fortunately, some state courts in the United States are slightly more progressive than the U.S. Supreme Court.  According to a survey by the Conference of Court  Public Information Officers, almost 12 percent of state courts at least use Facebook.

 

Whatever Happened to Precedent?

Partisan Court Quick to Reject Past Decisions

The U.S. Supreme Court and Tea Party Republicans have something in common.

Tea Party legislators in Congress have forced a shut down of the U.S. government because they oppose “Obamacare.”  This  tactic upsets longstanding practice and rejects the reality that the Patient Protection and Affordable Care Act is the law of the land and was effectively ratified when voters returned President Barack Obama to office.

The conservative majority on the U.S. Supreme Court doesn’t have to shut down the government to change a law. It merely uses it’s majority status to vote to overturn a precedent that it disfavors.

The New York Times reports the five-justice conservative majority on the U.S. Supreme Court is now poised to use the case of McCullen v. Coakley, No. 12-1168, to overturn a 2000 precedent that placed restrictions on anti-choice protests at reproductive health care facilities.

Adherence to precedent – or the collective judgments of prior courts – dates back to English Common law. It is part of the concept of “stare decisis” that posits upholding precedent strengthens the legal system by placing decision-making in the realm of neutral legal principles and the accumulated wisdom of many judges and courts rather than at the whim of self-interested individuals and partisan courts.

Just as the GOP in the House appear to have little regard for the political process that led to the adoption of Obamacare, the current conservative majority on the U.S. Supreme Court appears to have little respect for decisions of prior U.S. Supreme Courts.

The Precedent

In Hill v. Colorado,  the Supreme Court in 2000 upheld a Colorado law that made it unlawful for any person within 100 feet of a health care facility’s entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass “a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [that] person … .”.

The Massachusetts law at issue in the McCullen case makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility.”  If the Court  determines that Hill  permits enforcement of the Massachusetts law, it will decide whether Hill should be limited or overruled.

The growing partisanship of the Court can be seen by examining the Hill majority.

Hill was was decided by a vote of 6-3. Three Republican appointees on the Court voted with three Democratic appointees to uphold the Colorado law.  They were the late Chief Justice William Rehnquist and retired justices Sandra J. O’Connor and David Souter. The Hill Court ruled:

The State’s police powers allow it to protect its citizens’ health and safety, and may justify a special focus on access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.”

 The Court said that rules providing specific guidance to enforcement authorities serve the public’s interest in evenhanded application of the law. The majority also ruled the statute dealt not with restricting a speaker’s right to address a willing audience, but with protecting listeners from unwanted communication.

Prior to Hill, anti-choice protesters gathered daily in unruly mobs at reproductive health care facilities. They held graphic signs and shouted through bullhorns in an effort to intimidate women and deter them from entering the health care facility. This was part of a wider climate of fear in America that included anti-choice protesters targeting and, on several occasions, murdering health care providers and personnel who worked at reproductive health care facilities.

More Partisan

So, what’s different today? Primarily it’s the Court.

The Court was less partisan in 2000 when Hill was decided.

The three conservative justices who dissented in Hill  are Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy, all appointed by Republican presidents. The Hill dissenters are joined on the Court today by Republican appointees Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr.,  who  are among the most conservative justices since World War II.  The five-justice conservative majority on today’s Court outnumbers the four-justice Democratic-appointed, more liberal minority, Ruth Bader Ginsberg, Stephen J. Breyer, Sonia Sotomayor and Elena Kagan.

Justice Kennedy is sometimes considered a swing vote  but the dissent that he registered in Hill  signals a  vote in favor of overturning restrictions on anti-choice demonstrators.

There were several cases in the last term of the Court that were marked by bitter partisanship, as the majority overturned established and long-held precedent.

There is something rather surreal about it all. To quote from Lewis Carroll:

Alice: [as a giant] And as for you… Your Majesty! Your Majesty indeed! Why, you’re not a queen,

[shrinking]

Alice: But just a – a fat, pompous, bad tempered old ty…!

[normal size]

Alice: Tyrant.

Queen of Hearts: [giggles] And uh, just what were you saying, my dear?

Cheshire Cat: Why, she simply said that you’re a fat, pompous, bad tempered old tyrant!

 [chuckles]