[OPE-L] Labor Board's Detractors See a Bias Against Workers By STEVEN GREENHOUSE

From: Rakesh Bhandari (bhandari@BERKELEY.EDU)
Date: Sat Jan 01 2005 - 15:18:45 EST


January 2, 2005

Labor Board's Detractors See a Bias Against Workers

he rulings of the National Labor Relations Board have poured out one
after another in recent months, with many decisions tilting in favor
of employers.

The Republican-dominated board has made it more difficult for
temporary workers to unionize and for unions to obtain financial
information from companies during contract talks. It has ruled that
graduate students working as teaching assistants do not have the
right to unionize at private universities, and it has given companies
greater flexibility to use a powerful antiunion weapon - locking out
workers - in labor disputes.

And in a decision that will affect 87 percent of American workers,
the board has denied nonunion employees the right to have a co-worker
present when managers call them in for investigative or disciplinary

The party-line decisions have been applauded by the Republican
Party's business base, which sees them as bringing balance after
rulings that favored labor during the Clinton administration. But
some academic experts on labor relations say the recent rulings are
so hostile to unions and to collective bargaining that they run
counter to the goals of the National Labor Relations Act, the 1935
law that gave Americans the right to form unions.

"These decisions come close to or even match the Reagan board in
their intensity and vigor in promoting employer powers," said James
A. Gross, a professor at Cornell University who has written several
books about the board. "They are pressing the outer limits of what
could be a reasonable or legitimate interpretation of the balance
between employer prerogatives and worker rights. In my mind, this is
fundamentally inconsistent with the purpose of the National Labor
Relations Act, which is to encourage the practice and procedures of
collective bargaining."

Robert J. Battista, the labor board's chairman, denied that the panel
was stretching the law to help corporations.

"All the cases that we've decided have been well reasoned," Mr.
Battista said. "They're certainly consistent with the act. I wouldn't
characterize them as pro-business or pro-union. I'd like to say
they're pro-employee."

The board's defenders say it is merely continuing a long tradition of
swinging back and forth: toward management when a Republican is in
the White House and toward labor during Democratic presidencies.

"After eight years of a liberal Clinton board and an extremely
liberal general counsel, there is of course going to be some turning
back toward a conservative agenda," said Randel Johnson, vice
president for labor, immigration and employee benefits at the United
States Chamber of Commerce. "The board has turned a corner here, but
it's not a wholesale reversal of the case law in favor of the
business community."

Several recent board decisions, Mr. Johnson pointed out, have
reversed Clinton-era rulings that overturned precedents set by
Republican boards. In a case involving I.B.M., the board voted 3 to 2
to overturn a Clinton board ruling that gave nonunion workers the
right to have a colleague accompany them to investigative or
disciplinary meetings with supervisors. The Clinton-era ruling was a
reversal of a 1980's decision.

In a case involving Brown University, the board reversed a
Clinton-era ruling involving New York University - a reversal of a
1970's decision - that gave graduate student teaching assistants the
right to unionize.

Mr. Battista said, "What we did restores the precedent that has been
time-honored and had never been overturned by a court or by
Congressional action."

Labor unions say the reversals will make it much harder to organize
workers at a time when the percentage of Americans belonging to
unions is declining.

Jonathan Hiatt, the general counsel for the A.F.L.-C.I.O., said, "The
notion that in 15 or 20 recent cases the Republican majority has
changed board law in ways that take away worker rights, deny workers
protection in organizing and collective bargaining, and give
employers more latitude, that is really striking and very political."

The labor board has five seats, and the president appoints members to
five-year terms. For much of 2004, Republicans had a 3-to-2 majority,
but two members stepped down in December, resulting in a 2-to-1
Republican majority until the seats are filled.

Unions are alarmed by the board's decision to hear several cases that
question the legitimacy of card checks, one of labor's most
successful tactics in adding members recently. In the procedure,
companies agree to grant union recognition after a majority of
workers sign cards saying they want a union. By agreeing to card
checks, companies waive the right to hold a secret ballot to
determine whether workers favor organizing.

With pro-business groups saying union organizers sometimes intimidate
workers, Mr. Battista said, it was time to take a critical look at
card checks.

But the board's Democratic members vigorously objected. "The issues
raised by the petitioners were settled 40 years ago," they wrote. "To
revisit it serves no purpose but to undermine a principle that has
been endorsed time and again by the board and the courts."

Many unions say unionization elections are less fair than card checks
because they involve expensive and bitter campaigns in which
companies often fire and intimidate union supporters and warn that
plants may close if they become unionized.

Charles Craver, a professor of labor law at George Washington
University, said the board's conservative tilt would hurt unions, but
less so than the conservative tilt of the federal judiciary, which he
said was increasingly unfriendly to labor.

"I think we have a labor board as conservative as any time since the
Reagan board," Professor Craver said. "It really troubles me because
we're revisiting a lot of cases that have been fairly well settled."

In October, the board upheld a company's decision to fire a worker
who had asked a colleague to testify before a state agency to support
her claim of sexual harassment by a manager. The National Labor
Relations Act prohibits employers from retaliating against workers
who engage in concerted activity for mutual protection, but the board
found that the fired woman was acting only in her interests and not
for mutual protection to safeguard other workers from harassment.

"Taken one by one, I do not think these are the kinds of decisions
that make one sit back and say, 'This is outrageous,' " said Theodore
St. Antoine, an emeritus professor of labor law and former dean of
the University of Michigan Law School. "At the same time, I have to
concede that once more we're in the nibbling process. While none of
them consist of a great big bite, the cumulative effect is to
decrease the capability of unions to organize."

In September, in a case involving a trucking company that said it was
"in distress" and "fighting to stay alive," the board ruled that such
claims did not trigger an obligation for management to furnish
financial information to the union. Traditionally, when companies in
contract talks say they cannot afford what the unions are seeking,
they are required to provide information detailing their financial

The same month, the board ruled that disabled janitors could not join
a union with able-bodied janitors, on the grounds that the disabled
workers' relationship with their employer was "primarily
rehabilitative" and not a traditional employee-employer relationship.

"We haven't got a particular agenda," Mr. Battista said. "Nor are we
attempting to press the outer limits of management rights. We're
trying to strike a balance between union rights, management rights
and employees rights."

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