IBEW General Counsel Laurence Cohen

October/November 2001 IBEW Journal

Thank you very much, Ed, for that overly generous introduction. I appreciate it more than you can know.

President Hill, Secretary-Treasurer O'Connor, International officers, delegates and guests, this is the fifth convention at which I've had the privilege of addressing you, and it is a humbling experience each time. We have ten attorneys in our General Counsel's office, and we're proud to represent the IBEW, its locals and its members every day between conventions. Three of my colleagues are here today off to the right, and I'd like to recognize them. Associate General Counsel Elihu Leifer, Richard Resnick and Robert Kernick.

Now, I had a very dramatic announcement to make at this point, and Kevin just stole some of my thunder, but I'm going to do it anyway. Before I get into the highlights of the report, I wanted to tell you of the very satisfying victory we achieved in the U.S. District Court in Washington and a very satisfying defeat of Mr. Bush.

Now, I recognize that we all are standing behind him at this time of need, but we can't lose sight of the fact that his domestic policies are adverse to our interests in every way, and I will be commenting on that.

As you all know, one of his first acts as President was to sign an anti-PLA executive order that banned project labor agreements, not only on federal construction projects, but on any construction project that received any kind of federal assistance. It was and is our view that that executive order conflicts directly with our rights to use those agreements under the National Labor Relations Act and is, therefore, unlawful.

Our office, on behalf of the National Building Trades Department, filed a suit in federal court in Washington challenging the legality of the executive order and asking that it be enjoined. As Kevin mentioned, last month, the federal judge issued a preliminary injunction against the executive order; and in the course of his opinion, he said, and I quote, "The executive order unquestionably conflicts with the NLRA," which is exactly what we had argued to him.

Our motion for summary judgment, that is, to win the whole case and to have the order enjoined permanently, will be argued next week in Washington by my partner, Vickie Bore [?], who did a sensational job the first round, and we have every reason to expect a favorable decision. Now, I'm going to mention --

I want to mention briefly some of the major cases in the last five years, but I hope you'll take the time to read our legal report in full, which is in the President's Report, because it covers many more of the important developments.

In 1996, I spoke of two important Supreme Court decisions, the Boston Harbor case and Town & Country Electric. In the five years since the last convention, there have been a number of significant developments flowing from both of those decisions. After our victory in Boston Harbor, which rejected challenges to public sector PLAs under federal law, the ABC then launched a new attack against them bringing lawsuits under state competitive bidding laws.

I'm happy to say that almost all of them have met with no success. With one exception, the supreme courts of every state in which those challenges were brought rejected those challenges; and even in the one state that is the exception -- and that's New Jersey -- the state supreme court hasn't ruled out upholding the validity of a PLA in some circumstances, but it uses a test that's harder to meet than in other states.

There's one other case involving project agreements that deserves mention. In Ohio, the state legislature passed a law banning the use of project agreements on all public works in the state. We have worked with the attorneys for the Cleveland and the Ohio State Building Trades Councils in a lawsuit attacking that legislation as violating the guidelines the supreme court laid down in Boston Harbor. The lower court agreed with us. It found the law invalid, and it enjoined its use, and that case is now on appeal in the Ohio courts.

There have also been some significant developments affecting construction organizing since Town & Country Electric. In the last five years, ABC has tried a number of tactics, such as so-called neutral hiring policies that are anything but neutral, to get around the Town & Country decision. Virtually all of them have failed.

More recently, they've tried to lessen the financial cost of discharging our organizers by asking the Labor Board and the courts to severely restrict the amount of back pay that is due when they violate the Act. And I'm happy to say they have again repeatedly failed both before the Board and the courts of appeals.

The IBEW has also obtained some favorable decisions in other branches of the Brotherhood; and again, they're discussed in considerable detail in our legal report. Let me mention two of them. In Mississippi Power & Light, the Board finally accepted our arguments and held that distribution dispatchers in the utility industry are not supervisors. In doing so, the Board overruled a 1983 case that said they were supervisors, but I have to caution you here that the final result is still in doubt. One court of appeals has rejected the Board's view, and the issue is pending in another court of appeals. In fact, I believe it was argued yesterday.

In another case, Pirelli Cable Corp. out of the Tenth District, we had a mixed result. In 1997, the Board held that a strike against Pirelli was an unfair labor practice strike and ordered the company to reinstate all of the strikers with back pay. The company appealed to the Fourth Circuit Court of Appeals, which disagreed with the Board and held it was an economic strike under which strikers have fewer rights, and it remanded the case to the Board.

Last year, the Board issued a second decision, and it said that the company violated the employees' recall rights even as economic strikers. Once again, the company ran to the Fourth Circuit, which is the most conservative of the U.S. courts of appeals, at least on labor issues. Because of that and our concern that we were going to get a second reversal, the IBEW was able to negotiate a settlement agreement under which the company paid approximately a million and a half dollars to some 85 employees.

I want to conclude by addressing a subject that I've discussed at our last two conventions and at the many progress meetings that I attended last year, and that is the impact of the political process on your legal rights. In those progress meetings, I predicted dire consequences if we lost the presidential election. Well, we did lose the presidential election, sort of.

We are now facing those consequences. Let me be specific. I've already mentioned that President Bush signed an anti-PLA executive order. But did you know that he also signed the same day three other anti-labor, anti-worker executive orders? He has appointed a new NLRB general counsel who spent many years in his career working for the Chamber of Commerce of the United States and a major employer. He is not likely to be sympathetic to workers' rights.

Bush is about to name three new members to the NLRB, which only has five members. So we will lose our majority immediately and have to face the fact that the Board is not going to be a friendly forum for some years to come.

New officials have been appointed and are being appointed at other agencies as well, and there is no reason to expect a lot of help from them. As one egregious example, Supreme Court Justice Scalia's son has been nominated to serve as the top legal officer of the Department of Labor; and yet, young Mr. Scalia has publicly criticized the same workplace safety rules and other employment laws that he would have to enforce if he gets the job as the Labor Department's top lawyer.

President Sweeney, AFL-CIO President Sweeney, wrote recently to all 100 members of the Senate urging his defeat. And finally, Mr. Bush will have four years, and hopefully only four, to load the federal courts with conservative judges. In the Supreme Court where the labor movement is already in trouble, things can only get worse for us.

The bottom line is that after eight years of administrative agencies that were sympathetic to workers' rights and favorable appointments to the Courts of Appeals, we're entering a new era. At first we feared we would be returning to the Reagan era. Well, we were wrong, it's worse. The ideological policies and predilections of this administration are actually more conservative and more hostile than those of Mr. Reagan.

Things are bad enough now with a Republican President and a Republican House of Representatives. Thanks to Mr. Jeffords, we have the slimmest of margins in the Senate, and that is our only backstop against what had promised to be before he switched a slew of anti-labor, anti-worker legislation.

As Kevin mentioned, there is a critically important midterm election next year and it is absolutely vital that the Senate remain under Democratic control and, if humanly possible, that we gain majority status in the House of Representatives.

What I said to you in the past is that when we lose elections, our legal rights are in jeopardy. Well, they are very much, for the reasons I have mentioned, in jeopardy now. As Jerry O'Connor said on Monday, this is not a time for the faint of heart. But then, as Ed Hill added, the IBEW has had to face challenges throughout its history.

Our commitment to you is that as you face a new set of challenges, our office will be available through your vice presidents and in consultation with your local lawyers to do everything in our power to help you overcome those challenges.

So I say thank you, good luck and Godspeed.