8-26-05,9:07am
WASHINGTON (PAI)--In his federal legal career, John Roberts, GOP President George W. Bush’s nominee to the U.S. Supreme Court, opposed women’s rights and pay equity and gave the Bush administration lots of leeway for its anti-union crusade. The two areas, while only part of Roberts’ work, may help shed light on his philosophy in deciding future cases on the High Court, should the Senate confirm his nomination to succeed retiring Associate Justice Sandra Day O’Connor. Senate Judiciary Committee hearings open on Roberts’ nomination on Sept. 6.
Roberts, 50, a judge on the U.S. Circuit Court of Appeals for the District of Columbia for the past two years, served in political and legal positions in the Reagan and Bush I administrations. Organized labor is still deciding whether or not to campaign against Roberts, the first Supreme Court nominee in more than a decade.
But civil rights and womens’ rights groups, normally labor allies, are leery about him, due to his opposition to affirmative action, his arguments, for those two adminis- trations, against reproductive rights, and his anti-women’s rights memos for Reagan.
“There have been almost daily revelations that Roberts was a charter member of the Reagan-Bush legal policy team that attempted to dismantle the civil rights remedies,” including affirmative action, previous presidents backed, said Ralph Neas, executive director of People for the American Way.
The latest batch of memos show Roberts denouncing the Equal Rights Amendment, as well as calling state measures to curb workplace discrimination “highly objectionable.” And in 1984, at Reagan’s Justice Department, he opposed pay equity.
PAY EQUITY
A federal district court in Washington state ordered pay equity for 35,000 female state workers who suffered pay discrimination. Three GOP female U.S. representatives urged Reagan to accept, not appeal, that decision.
Reagan’s Justice Department appealed, and won, but the case was eventually settled out of court, with the women getting $100 million in pay adjustments--but not before Roberts blasted the lawmakers for calling pay equity “a non-partisan issue.”
Roberts’ memo to superiors said: “I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept.”
Like present Right Wing foes of pay equity, Roberts said the male-female pay gap is because men have more job seniority and women temporarily leave the workforce to have children. (In a later memo, he added: “Some might question whether encouraging homemakers to become lawyers contributes to the common good.”)
“Their slogan may well be: ‘From each according to his ability, to each according to her gender,’” Roberts’ memo added of the three U.S. representatives.
One of the three female GOP lawmakers Roberts slammed, then-Rep. Olympia Snowe (R-Maine), now a senator, will vote on Roberts if the nomination reaches the Senate floor. “Hopefully, 21 years later, Judge Roberts possesses an openness with respect to gender-based wage discrimination,” she said in a statement.
Rep. Rosa DeLauro (D-Conn.), a current leader of the congressional fight for pay equity, notes Roberts objected to a law--the Equal Pay Act--passed in 1963.
“The Equal Pay Act was supposed to put wage discrimination on the basis of gender on the same footing as wage discrimination on the basis of race or ethnicity,” DeLauro noted. “Forty-one years have passed and women are still paid only 77 cents for every dollar men earn....It is time we give every woman and every woman’s family a full day’s pay for a full day’s work. This is why we must completely examine Judge Roberts’ record on this issue, because his statement from 1984 is rather troubling.”
UNION FINANCIAL DISCLOSURE
Roberts was one of the three D.C. Circuit judges who, this year, killed the AFL-CIO’s challenge to Bush administration union financial disclosure rules. But Roberts wrote a dissent in which he favored giving Bush Labor Secretary Elaine Chao even more power and control over unions than his colleagues did.
The judges upheld Chao’s right to require unions with budgets of $200,000 or more to disclose virtually every penny of spending on everything from pencils to paper clips to pay. The disclosures, on the LM-2 forms, are posted on the department’s web site. There, unionists can see where their money is going--and so can labor’s foes.
Chao’s rules also said unions must account for, in detail, staffers’ time and spending in detailed categories, including legislative action, bargaining and organizing --again throwing open union records to union foes.
Corporations do not have to make similar disclosures, the AFL-CIO says. It told Roberts and his colleagues, the new disclosure rules were implemented illegally, violating due process requirements of federal law. It also said, though not in court, that the fulfilling the enormous and detailed paperwork of the Bush/Chao rules would be an impose an enormous burden on unions that would hamper them from unions’ prime duty: Working for their members.
Roberts was part of the 3-0 decision on May 31 upholding the Bush/Chao rules, for unions, written by Judge Judith Rogers. But he disagreed with Rogers’ third section. Rogers said Chao’s rules were too broad in being applied to organizations such as union-administered trusts. Roberts’ response was to trust Bush’s Labor Secretary on those, too. But he lost, 2-1.
“The circumstances of union control” of the trusts--such as health and welfare funds--“will come in many varieties,” he wrote. “Presumably, one union appointed trustee will normally not be enough. But if there are only three trustees, or if one of the other trustees is affiliated with another union, it might be. In deciding to incorporate” the law’s definition of “control” of the trusts, Chao “explained the difficulties” of other approaches dealing with financial control, Roberts added.
“She (Chao) specifically noted that looking to the degree of union ownership and control ‘does not appear to be a workable or appropriate approach.’ Union ‘ownership and control,’ in the context of a union’s participation in a trust that provides benefits to the membership, are very difficult concepts to quantify.” That’s why Chao rejected it, he said--and his colleagues on the appellate court should have done so, too.
“Perhaps the secretary was wrong in her assessment about what degree of union involvement in the affairs of a trust poses a danger of the trust being used to circumvent or evade reporting requirements,” he admitted. But the law “plainly delegates the authority to make such policy laden judgments to” Chao. She “reasonably exercised that authority,” over the trusts, too, Roberts said.
FAA WORKERS’ CONTRACT
The LM-2 forms were one of two cases where Roberts ruled in favor of Bush’s broad campaign against unions. The other also dated from Bush’s early days. It concerned the collective bargaining agreement between the Federal Aviation Administration and AFSCME District Council 26, which represents FAA workers.
That pact covered four groups of workers. It represented one of the first instances, though little known to the general public, of Bush’s anti-union crusade.
Barbara Kraft, one of two attorneys who handled the case for District 26 before Roberts and his colleagues in Nov. 2004, termed the judge “extraordinarily intelligent and well-prepared,” but was troubled by his tone during questioning. She said he asked union attorneys more questions than he asked of attorneys for the government.
“I thought the result”--for Bush’s Office of Management and Budget and against the FAA workers earlier this year--”was very wrong. Of course, we moved for a rehearing, but it was denied,” she said.
The FAA reps and District 26 bargained on a new contract in 2000 and reached an agreement on Jan. 19, 2001, the day before Bush entered the White House. But that’s where the story splits, and Roberts wrote the ultimate pro-Bush ruling, last year.
FAA negotiators contended they warned AFSCME the tentative agreement would not be final until the OMB signed off on it, and that OMB had the power to reject it, which it did. AFSCME said the FAA representatives got approval, in advance, to negotiate a finished contract. “One of them was from Covington & Burling,” a prestigious, high-powered D.C. law firm, Kraft said of the FAA bargainers.
The difference, though unstated in the court papers, was that Bush’s OMB would get the chance to sign off on the FAA pact--or not.
After Bush’s OMB rejected the FAA contract several weeks later, AFSCME charged FAA with unfair labor practices. It lost in Federal Labor Relations Authority proceedings and went to court, where the case wound up before Roberts. Writing for another unanimous 3-judge panel, he ruled for Bush’s OMB on Jan. 14, 2005.
“We have no basis on which to disturb the authority’s ruling,” Roberts wrote.
“OMB approval was raised, the context is disputed. In the union’s view, the issue was approval of FAA offers. In the FAA’s view, it was approval of the final agreement. The authority’s decision thus hinged on which version of events it found more credible. We normally accord substantial deference to such determinations unless they are ‘hopelessly incredible,’ ‘self contradictory,’ or ‘patently unsupportable.’
“Here, the authority expressly relied on the administrative law judge’s decision” to believe the FAA reps’ testimony. “The ALJ found their testimony ‘consistent and logical within the time frame of the extended negotiations,” Roberts wrote.
“She based this determination, in part, on testimony concerning union President (Gerald) McEntee’s references early in the negotiations to ‘the OMB problem,’” Roberts
stated. Kraft, however, pointed out that McEntee did not attend any of the bargaining sessions and made that statement in a non-bargaining meeting elsewhere.
That did not stop the ALJ, or Roberts. “The union did not deny (FAA representative) Herman’s testimony on this point and we find nothing ‘unsupportable’ in the authority’s decision to credit the testimony of the FAA witnesses,” he continued. That credibility decision, plus other details, led to Roberts’ ruling for Bush’s Federal Labor Relations Authority and against AFSCME and the FAA workers.
THE TEAMSTERS PENSIONS
As a Reagan administration Justice Department official in 1982, Roberts wanted to penalize individual Teamster pension fund trustees for financial finagling. He participated in discussions with the Labor Department and the IRS about whether to pursue damages from trustees of the Teamsters’ Central States Pension Fund.
Roberts’ memo to the Attorney General said: “It was agreed by all concerned”--including himself--”there must be individual contributions from the trustees, beyond insurance coverage,” for pension fund losses. But he admitted “the question may well be moot since several people involved regard it as unlikely the CSPF will accept the principle of individual liability beyond insurance.” From International Labor Communications Association
