April 4, 2012
By Marc Bussanich, LaborPress City Reporter
On March 1 U.S. District Judge Brian Cogan heard oral arguments from lawyers representing 32BJ and Renaissance Equity Holdings, the owner of the Flatbush Gardens apartment complex, regarding the National Labor Relations Board’s filing of a motion for an injunction to end the lockout of 70 workers at the complex. Last week, Cogan issued the injunction, allowing the workers to report back to work at 7:00 AM on Monday, April 1.
The lockout occurred because Renaissance demanded a draconian wage cut of 30 percent because it claimed it was losing money. In turn, the union was trying to find a way, even at some cost, such as a one-year pay freeze and a reduction in the workforce at Flatbush Gardens, to get a deal that would salvage the living standards of the workers and save money for the employer, but not at the cost of making the workers paupers, according to the union.
Renaissance hired Paul Clement, the former Solicitor General under President George W. Bush, who opened the March 1 arguments by arguing that the NLRB’s petition for an injunction was not onstitutionally legal because President Barack Obama’s NLRB recess appointments were made when the U.S. Senate was in session and therefore needed the input of Congress to approve the appointments.
These days, Clement is arguing before the Supreme Court to challenge the constitutionally of the Affordable Care Act’s, affectionately known as Obamacare, mandate that requires individuals to purchase health insurance.
The wisdom to hire Clement to argue the injunction’s constitutionality was questioned by a 32BJ spokesperson, who noted, “There was nothing unusual about how Judge Cogan ruled because this very question has come up numerous times within the past two years and every court that has heard it has ruled the same way. Even circuit courts, which have greater authority than Cogan’s courtroom, have ruled the same way. Cogan was just following the decisions made by previous judges.”
The spokesperson explained that in his decision Cogan said that he didn’t need to reach the constitutional questions because “even if the new board was improperly designated by President Obama, the old [NLRB] board had already delegated the authority to bring the injunction action to the General Counsel [the NLRB’s top investigative and prosecutorial position] and that delegation continued until the new board comes into effect.”
(See Cogan’s decision at www.nlrb.gov/sites/default/
The importance of the injunction can’t be overstated for the 70 workers who’ve been without work since November 2010. “We still have a long way to go because we have to negotiate a contract with this employer and I don’t think it’s going to be easy. But restoring the status quo is helpful, to say the least,” the spokesperson said.
Although the workers have reported back to work and have had their health care benefits restored, they will only be getting 80 percent of their wages before the lockout. According to the union, the judge believed that by restoring 80 and not 100 percent of their previous wages, it gives the union an incentive to bargain.
“We don’t agree it was right, but getting our members back to work, restoring their health care and putting us in a position to negotiate is an incredibly important step forward for us.”
While the union has already reached out to Renaissance to begin bargaining for a new labor contract, and Renaissance has agreed (because it’s under court order to do so), the spokesperson stressed, however, that the union will be pursuing the merits of the case currently before the NLRB board and litigate to restore the workers’ wages at 100 percent before the lockout and for back pay.
So even if the union and Renaissance were to agree to a new collective bargaining agreement tomorrow, the litigation over whether the lockout was unlawful will continue. The spokesperson stressed, again, that Cogan’s decision is just a preliminary decision.
“We have every reason to keep fighting because the consequences of the litigation is that we win back pay for the whole period of time the workers were locked out—that’s a lot money for our folks,” said the spokesperson.
The bargaining for a new contract begins this week while simultaneously an NLRB administrative law judge has received briefs from the union and will render a decision within the next few months.
Once the judge decides, then either side has the opportunity to appeal to the five-member NLRB board in Washington, D.C. and the Board will then decide whether to uphold the administrative law judge’s decision, modify it or overturn it. At that point, either side can go to federal court at the circuit level to try to overturn the Board’s decision, according to the spokesperson.
The spokesperson also questioned the wisdom behind Renaissance’s decision to hire high-powered, high-priced lawyers to make its case in Cogan’s courtroom.
“I wonder if Renaissance hasn’t calculated that the cost of their lawyers might exceed the cost of our contract.”