Bush Labor Board Stacked Against Workers

It's a year of self-examination for the labor movement as it struggles to rebuild declining union membership during the second term of a notoriously anti-union president. And at the heart of the matter is the National Labor Relations Board, the agency that administers laws that determine how workers in the private sector choose to form a union and that rules on what are or are not unfair labor practices.

The normally five-member board issues decisions by majority vote. Since 2003, the board has been dominated by Republicans. And its decisions - most on a 3-2 party line split - have been relentlessly anti-union.

• In June of last year the Bush NLRB voted 3-2 to deny workers who are not represented by unions - about 87 percent of the workforce - the opportunity to have a co-worker present during any investigatory interview that might result in discipline or firing. Union-represented workers have had that right since 1975, when the Supreme Court upheld an NLRB complaint against J. Weingarten Inc.
  
  Union stewards have since helped many a worker explain extenuating circumstances and have served as witnesses to prevent supervisors from giving false accounts of interviews.
  
  The Clinton labor board had extended so-called Weingarten Rights to non-union workplaces in a July 2000 decision against the Epilepsy Foundation.
  
  
• The Bush board voted on July 13 of last year to deny graduate employees at private universities important federal protections affecting their rights to form unions and bargain effectively. The board sided with administrators at Brown University in Providence, R.I., who fought efforts by graduate employees to form a union with the Auto Workers.
  
  In a 3-2 party line decision, the Bush NLRB said graduate employees are students, not workers, and therefore are not entitled to the protections of federal labor law. The ruling overturns a 2000 decision by the Clinton labor board giving graduate employees at New York University the right to a union voice on the job.
  
  
• On Nov. 19, the Bush NLRB overturned a four-year-old ruling that allowed temporary workers supplied by staffing firms the right to form a combined union with employees of the company that uses the temp agency. The new ruling requires the temporary workers to have the permission of both the staffing firm and the employing company before there can be a vote to form a union.

The board dismissed a petition filed by Service Employees' Local 1199 seeking to represent employees at Oakwood Care Center, a nursing home in Oakdale, N.Y. The nursing home and N&W Agency Inc. jointly determine the agency workers' pay and benefits. Oakwood supervises them, and they work side by side with workers employed directly by the nursing home. The three Republicans voted for the change, while Democrats Wilma Liebman and Dennis Walsh strongly dissented, accusing the majority of "accelerating the expansion of a permanent underclass of workers."

They maintained that "the result - which exalts business flexibility at the complete expense of employee rights - is the opposite of what Congress intended" when it passed the National Labor Relations Act in 1935.

The NLRA, then, was hailed as the "Magna Carta" of American labor. It ended years of employers spying on, interrogating, firing and blacklisting workers who tried to form unions. By 1945, union membership had swelled to 35 percent of the workforce.

In 1947, employers succeeded in amending the NLRA through passage of the Taft-Hartley Act, allowing unions to be prosecuted, enjoined and sued for a variety of activities including mass picketing and secondary boycotts. Congress again amended the act in 1959, imposing further restrictions on unions through passage of the Landrum-Griffin Act, but workers continued to effectively organize under the protections of the NLRA well into the 1970s.

NLRB decisions since then have shifted much of protection afforded by the act to employers and, along with the rise of professional union-busting consultants (see story, page 6) have made it increasingly difficult for workers to win NLRB elections and to bargain first contracts. Union membership has plummeted from about 23 percent of the workforce in 1979 to about 12.5 percent today.

The Bush labor board has further attacked workers' rights by making it more difficult for unions to obtain financial information from companies during contract talks, by giving companies greater flexibility to lock out workers in labor disputes and by deciding to hear several cases that question the legitimacy of majority card check recognition.

CWA has organized more than 21,000 workers at Cingular Wireless and thousands at other companies through card checks, which allow employees to vote to join a union by simply signing a card rather than facing employer intimidation in lengthy NLRB election campaigns.

"There is no question that the current labor board is the most conservative ever," said CWA Executive Vice President Larry Cohen. "That's why we need a law like the Employee Free Choice Act, to make card check the law of the land and penalize companies that refuse to bargain first contracts. We've got to mobilize to change the law and we've got to mobilize to bring representation to the 42 million workers who have said they would join a union if given the opportunity. We won't be getting any help from the NLRB for a very long time."

Each member of the National Labor Relations Board is appointed by the president to a 5-year term, with one of the appointments expiring each year. Two board members, one a Democrat and the other a Republican, stepped down at the end of 2004, leaving the board with a 2-1 Republican majority. President Bush will appoint their replacements, likely establishing a party line ratio of 4-1.

In August 2006, Liebman, the last remaining Democrat, originally appointed by President Clinton, will leave the board. President Bush will name her replacement, too.