Chicago, Ill.
The National Labor Relations Board has entered one of the most shameful chapters in its 69-year history. In theory, the NLRB is the leading federal agency mandated to uphold and protect the freedom of America’s workers to form unions and bargain collectively. In practice, with a working majority appointed by President Bush, the NLRB has been perverted into a dangerous enemy of workers’ rights. Few things better underscore the urgency of changing Presidents and changing the nation’s labor laws than the recent record of the Bush NLRB.
Among the long list of its offenses against workers’ rights, the following Bush NLRB actions stand out:
- making it harder for workers to form a union by attacking majority verification/card check,
- weakening the Act’s effectiveness by limiting its remedies,
- shrinking employee rights by limiting the rights of health care workers to strike,
- participating in a non-NLRA, federal court case to argue against the rights of states to prohibit the use of taxpayer money to influence workers’ union support, and
- withdrawing NLRA coverage and protections from a whole class of workers at private universities.
In each of these matters, the Board’s Republican majority outvoted the Democrats to assault workers’ rights—the very rights it is supposed to protect.
Attacking Majority Verification/Card Check—Dana and Metaldyne:
Siding with the far right wing anti-workers’ rights National Right to Work Committee, in June the Bush NLRB overruled its own regional directors and granted review of two cases brought by the National Right to Work Legal Defense Foundation. In so doing, and in the rush to judgment that has followed, the Board has signaled its intent to reverse 40 years of precedent and weaken or overturn something known in Board parlance as the “recognition bar.” The recognition bar allows workers whose unions are formed pursuant to a voluntary recognition agreement a reasonable period of time to negotiate an initial collective bargaining agreement, without the threat of a decertification election, which can be initiated by only 30 percent of the workforce. In the UAW/Dana and UAW/Metaldyne cases, the National Right to Work Committee fomented decertification petitions and demanded that the NLRB set aside its long-standing recognition bar policy and conduct decertification elections after voluntary recognition was granted, even though the parties had not yet had a chance to bargain an initial agreement.
Rejection of the recognition bar policy will seriously undercut voluntary recognition agreements. Voluntary recognition/card check agreements are a vital alternative to the meat-grinder of the NLRB election process, during which workers struggling to form a union are subjected to weeks and months of employer pressure, harassment, threats, surveillance and intimidation. Voluntary recognition agreements are a superior process because they protect workers’ rights and nurture the development of positive labor-management relationships. While the Board has not yet issued its final decision in these cases, the Republican majority on the Bush NLRB seems intent on undermining voluntary recognition agreements and the important rights they protect.
Weak, Ineffective Remedies—First Legal Support Services, LLC:
The Bush Board’s decision in First Legal Support Services, LLC, on June 30, 2004, telegraphs to employers that they have little to lose when they violate workers’ rights. In this case, the Bush Board members rejected special remedies developed by the Clinton Board to remedy egregious violations during organizing campaigns. These remedies were designed to overcome the harsh impact on workers of their employer’s anti-union campaign tactics and include having the owner read the NLRB Notice to Employees, allowing the union access to bulletin boards and to address workers on-site, and providing the union with a list of employees’ names and addresses. These special remedies were devised specifically for cases like First Legal Support Services, LLC, where bicycle and driver couriers who tried to form a union were fired, threatened with discharge because of their union activities or because their family members were involved with union organizing, made to sign independent contractor agreements, and offered bribes if they would give up their union support. Despite these hallmark violations, the Bush Board concluded that, four and a half years after their organizing campaign started, a simple notice posting and cease-and-desist order was a sufficient remedy “to ensure that the employees will have the opportunity to participate in a free and fair election.”
Limiting the Right to Strike—Alexandria Clinic:
In its 3-2 decision in Alexandria Clinic, the Republican majority upheld the employer’s firing of 22 striking nurses, holding that because the nurses began the strike four hours after the time specified in the union’s required 10-day notice to the employer, the strike was not protected by the Act. The majority reached this harsh result even though there was no evidence of any disruption in patient care resulting from the delay in the commencement of the strike. The decision also ignored specific language in both the House and Senate Committee reports on the 1974 health care amendments to the NLRA stating that it was not Congress’ intention that a union be required to commence a strike or picketing at the “precise time specified in the notice,” and that no violation of the notice requirement should be found as long as the union acted “within a reasonable time after the time specified in the notice.” As the dissenting members of the Board forcefully stated, “[I]t is absurd to think that Congress intended to put employees’ jobs in peril simply because their union was not absolutely punctual.” But the Bush-appointed majority was not deterred by Congressional intent.
Participating in Lawsuits to Challenge State Statutes—the Cedillo Act:
In 2002, the California legislature passed a law to protect the state’s taxpayers by prohibiting the use of state funds to subsidize employer campaigns to influence their employees’ decision about unionization. The goal of this law was to ensure that the billions of dollars in state funds that flow to private employers each year in the form of contracts and grants be used for the purposes for which they were intended—to provide services and programs—and not squandered on campaigns unrelated to the state’s work.
The Chamber of Commerce filed suit in federal court against this new California law, arguing that it was pre-empted by the National Labor Relations Act. It is disappointing, but not surprising, that the Chamber took this position.
What is surprising, disappointing—and outrageous—is that in June 2003 the Bush NLRB decided to file an amicus brief in support of the Chamber’s lawsuit. Instead of devoting its scarce staff time and resources to the mission of upholding and protecting workers’ rights, the Board used them instead to throw its weight behind the perverse argument that state legislatures lack the authority to protect taxpayers’ dollars from unintended uses. Certainly the Board’s resources would be better spent protecting workers who must wait months and years for a pale imitation of justice from the NLRB.
Shrinking NLRA Coverage by Denying Graduate Students NLRA Rights—Brown University:
In its Brown University decision last month, the NLRB overturned a Clinton Board decision and ruled that graduate student employees are not “employees” within the meaning of the National Labor Relations Act. With this ruling, the Board’s Republican majority denied graduate employees at private universities important federal protections when forming a union and bargaining collectively. The notion that these individuals are not employees violates common sense and is yet another nail in the coffin of America’s workers’ human rights. In this era of ongoing corporatization of higher education, graduate student employees form an easily exploited labor pool. As full-time tenured and tenure-track faculty positions diminish, graduate employees increasingly are expected to perform teaching and research duties for paltry wages and inadequate benefits.
In its zeal to limit the very rights it is charged with upholding, the Board ignored this evidence, leaving tens of thousands of graduate student workers without the Act’s basic protections. These workers are not alone. When Human Rights Watch issued its blistering critique several years ago of the status of workers’ freedom to form unions and bargain collectively in the United States, the huge gaps in coverage under U.S. law was high on its list of serious and widespread workers’ rights violations. The GAO subsequently estimated that 32 million U.S. workers completely lack legal protection of their basic right to form unions, including supervisors, independent contractors, domestic workers, farm workers in most states, and millions of government and small business employees.
The Bush NLRB’s flawed Brown decision does not erase the fact that the freedom to form unions is a fundamental human right. The struggle of these workers to form unions must and will continue, but will now be even more difficult—thanks to the Bush NLRB.
Needed: A New President, A New Board—and A New Law
These Bush NLRB actions are bad enough, but they barely scratch the surface of the problems with the Board—and the law it enforces. The NLRB has become synonymous with weak, ineffective remedies and intolerable delays. Employers violate workers’ rights with impunity, knowing that no matter what they do they face nothing worse than a slap on the wrist.
The problems with the NLRB and the law it enforces are contributing to a growing crisis in America’s workplaces, in which 42 million non-union workers want unions but under today’s rules can’t have them. The costs and consequences of suppressing workers’ rights and denying democracy in the workplace are devastating, not only for workers and their families but for social and economic justice for all.
The problems with the NLRB underscore the urgency of electing John Kerry as President. The power of the President to make appointments to agencies such as the NLRB can make a huge difference, as we have seen. But the problems go deeper: the National Labor Relations Act, the law that the NLRB enforces, is seriously flawed. The AFL-CIO and its affiliates cannot rest until we have built a mass movement strong enough to pass new laws, including the Employee Free Choice Act, that truly protect the fundamental human right of America’s workers to form unions and bargain collectively, without employer interference.