Saturday, February 01, 2003

corporate recividism, etc.

Sometimes it is possible to get so caught up in the internal processes of labor law, that it is hard to step outside of those processes to see how odd they are. Here is an example of what I mean, and (because that's where my mind is at these days) it all comes back to judicial nominations and confirmations.

Yesterday the U.S. Court of Appeals for the DC Circuit issued a labor law decision, mostly upholding a decision of the National Labor Relations Board against Beverly Enterprises. Beverly is a major nationwide nursing home chain. It is a frequent violator of the nation's labor law. Here is the DC Circuit's decision. There are, to my eye, two striking things about this decision in itself:

1) A substantial issue before the DC Circuit was whether the NLRB had gone too far, had issued a too-draconian remedy against Beverly, on account of its multiple violations of the National Labor Relations Act. This issue was considered serious enough to warrant significant discussion by the Court; it is a remedy that is extraordinarily rare in labor law, and is reserved by the NLRB for the few most serious cases. What was the draconian remedy? Maybe something like the corporate equivalent of at least 50 years' imprisonment for petty theft (the punishment that the U.S. Supreme Court will likely uphold, this spring)? Not really. It was just an order that Beverly post a piece of paper in each of its facilities noting that it had been found to have violated the NLRA and shouldn't do so again. That's it. Really. That's considered a severe remedy against a company in labor law. No wonder companies scoff at the law.

2) Even more important -- but somewhat more complicated -- is that the DC Circuit overruled the Board's decision on the one point that actually had a substantial impact on people's lives. The Court held that 450 Beverly employees forfeited their jobs by going on strike. The law, in a nutshell, is that you don't forfeit your job by going on strike. But the Court said that because of a particular rule regarding the necessity of giving notice of a strike in the health care industry, these employees had violated the law and forfeited their jobs. Why was this unfair? Because even the Court admitted that there was a long line of law from the Board that said that the particular thing that the employees did in this case was perfectly lawful; the employees were doing what the Board had upheld before. Nonetheless, the Court said "tough luck, the Board was wrong, you screwed up by relying on that settled understanding of what the law was, you lose your job, byebye."

This in itself is bad enough. But compare it to what the same Court, the DC Circuit, said in another recent case about a change in labor law: that a company that had relied on the then-current state of the law, in firing two employees, couldn't be forced to reinstate those employees when the Board's understanding of the law had changed. So the practical upshot is this: if the law changes in a direction to favor the company and it disadvantages employees who relied on the old law, the company wins. if the laws changes in a direction to favor the employee and it disadvantages a company who relied on the old law, the company wins.

So what does this have to do with judicial nominations and confirmations? It's the DC Circuit. Why do companies so often take their big labor law cases to the DC Circuit, to review NLRB decisions, rather than going to the Circuit where the case arose? Because they can, and because they, like me, think that it matters a whole lot who's on the court you're arguing to. Company lawyers, like me and like every member of the Senate Judiciary Committee, are cynical realists: they know that some courts are more likely to reverse NLRB decisions, and some less so. And the one they think is most likely to do so, is the DC Circuit. That's the Circuit that the Republicans refused even to consider letting President Clinton put anybody on; vacancies languished for years in the Clinton era and were never filled. That's the Circuit that, now that they hold the cards, they're eager to fill the vacancies on, with people like eager beaver and Ann Coulter-helper Miguel Estrada.

This is the life of labor law.

UPDATE: Thanks very much, TAPPED. For more on Estrada, see my other posts (e.g.) here and here.

posted by sam 7:31 AM 0 comments

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