Corporate Ally: National Labor Relations Board Steadily Chips Away at Workers' Rights

Under the Bush administration, the National Labor Relations Board (NLRB) has proved to be an ally of employers and anti-union groups in seeking to rollback workers' rights and protections. Instead of guarding organizing and collective bargaining rights, the Board's three-member Republican majority has chipped away at them.

At the same time, the NLRB has tended to ignore heavy-handed tactics by employers, applying a double standard when deciding what is acceptable anti-union or pro-union conduct. The impact of the Board's anti-worker stance speaks for itself: In the span of seven years, the organizing rights of some 10 million workers have been revoked or sharply limited.

"Millions of workers have seen their right to organize eliminated or severely restricted, their basic human rights. . .trampled," Rep. George Miller (D-Calif.) testified last year when speaking in support of the Employee Free Choice Act.  Miller, the bill's chief sponsor in the House, said the NLRB has given employers "free rein to make it as difficult as possible for their employees to organize."

As part of his testimony, Miller presented a comprehensive report on how the Bush NLRB has weakened workers' rights and failed to live up to its responsibility to uphold the spirit and letter of federal labor laws. Here are some key points:

Excluding Workers from the Act

In four cases, the Board excluded or sharply limited workers' organizing rights. In a case named Brevard Achievement Center, it concluded that 45,000 disabled workers did not constitute the meaning of "employees" under the National Labor Relations Act and excluded them from coverage. All workers at the center, disabled and non-disabled, worked the same hours, performed the same tasks and were paid the same wages.

In Oakwood Care Center, the Board sharply limited organizing rights for more than 2 million temporary workers across the country. It said temporaries could not organize unless the employer where they worked, and the staffing agency, both consented.

In one of the Board's most destructive and overreaching rulings, Kentucky River, the Board threatened the loss of union representation for up to 8 million workers who sometimes perform supervisory duties. In the decision, which involved nurses, employers were granted extremely wide latitude in defining its employees' supervisory status. This essentially enables an employer to revoke union recognition for a group of employees, or prevent them from organizing.

Applying a Double Standard

In seven cases involving the anti-union and pro-union conduct of supervisors, the Board ruled that pro-union activity by a supervisor (passing out cards or urging workers to support the union) was more coercive than a supervisor who used threats to influence the outcome of an election. One of these decisions, Chinese Daily News, overturned an election for workers who were seeking representation with TNG-CWA. Yet, in Werthan Packing, the Board refused to overturn an election despite evidence that a supervisor threatened an employee about her support for the union, telling her that it would be in the best interests of her family if she voted "no."

Permitting Rules that Discourage Organizing

In five cases, the NLRB ruled that employers could institute work rules that might frighten workers away from organizing or other concerted activities protected by the Act. In Guardsmark, the Board said an employer could ban off-duty fraternization by employees even though the rule was vague and had a chilling effect on workers seeking to organize. On March 20, the Board's ruling was overturned by the DC Court of Appeals, which found the employer's rule unlawful and a violation of the Act.

Limiting Workers' Fundamental Rights

In three cases, the NLRB permitted employers to restrict workers' bedrock rights under the Section 7 of the Act, including the right to join unions, attend union meetings, and distribute or discuss union literature.  One devastating setback came in IBM Corporation, where the Board overturned a 32-year Supreme Court decision which granted workers, union or non-union, the right to have a co-worker present (known as "Weingarten rights") during an employer's disciplinary meeting. Non-union workers now have no such right.

Lowering the Bar for Fair Elections

In Washington Fruit and Produce, the board said a narrow union loss in an election could stand even though the employer had not supplied the union with an accurate list of all employees as required. The margin of missing addresses could have made the difference in the election.

The Republican majority on the NLRB could do more harm before the Bush administration leaves office in 2009. The Board is considering two separate challenges to card check recognition agreements, which is how a vast majority of workers are now gaining union representation.