Election stakes high for unions, managers
BY JOHN GALLAGHER
FREE PRESS BUSINESS WRITER

Organized labor is working overtime this fall to defeat President George W. Bush, and one big reason is that Bush's Democratic opponent, Sen. John Kerry, will almost certainly make life easier for unions trying to sign up new members.

That's because Kerry, like any new president, can immediately reshape the National Labor Relations Board, the federal body that regulates labor-management disputes in the United States.

The Bush-appointed Republican majority on the five-member board has handed unions several stinging defeats, including the process of making it easier for unions to sign up members, this year.

All sides agree that a Kerry-appointed board could reverse, or at least moderate, many of those decisions.

For unions and management, the stakes are high.

"People need to know that when they vote for president, they're also voting for a National Labor Relations Board as well as other federal agencies," said Richard Block, a professor of labor and industrial relations at Michigan State University.

Unions' complaints of political bias rile Robert Battista, a Republican and former Detroit management lawyer named by Bush in 2002 to serve as chairman of the NLRB. He calls the criticism "election-year hyperbole."

"We don't have any agenda," Battista said last week. "The cases come up to us, and we decide them as we get them."

But union activists contend that the board is far from neutral.

"They absolutely have an agenda, and it's laughable for them to say they don't," said Stewart Acuff, organizing director for the 13-million member AFL-CIO, the nation's largest labor coalition.

Of course, organized labor has had other complaints about Bush's labor policies. Unions have fought his plan to revamp overtime regulations more to corporations' liking. Union leaders have also criticized his denial of union protections to Homeland Security workers. But the set of recent NLRB rulings have added impetus to their massive effort to elect Kerry.

"It's the largest political effort that the AFL-CIO has had, ever," Acuff said. Mark Gaffney, president of the Michigan AFL-CIO, added: "We started earlier. We're reaching more people. We're focusing a lot more on swing voters."

Unlike the U.S. Supreme Court, whose members change slowly over decades, the membership of the quasi-judicial NLRB is directly affected by each presidential election.

The board's five members serve for staggered 5-year terms, so any incoming president almost immediately gets to change the composition of the board. Moreover, under board rules, three members belong to the same party as the
president, and two are from the party out of power.

The president also gets to appoint the NLRB's general counsel, who heads the board's legal staff and oversees all cases brought before the board. The general counsel enjoys almost absolute discretion about which cases make it
to the board for review.

John Raudabaugh, a partner at the Detroit law firm of Butzel Long and a Republican member of the NLRB from 1990 through 1993, has studied the impact of politics on board rulings. He concedes that party affiliation plays some role but calls complaints of bias "outrageous, false and wrong."

"When a Republican's in the White House, there's a lot of union whining, and when a Democrat is in the White House, there's a lot of management whining, which tells me the system is working exactly as it's supposed to," he said.

Like any government agency or board, the vast majority of the NLRB's work consists of routine cases. Of 228 rulings issued by the board through July 31, Raudabaugh said, only five involved the full board. The rest were handled by smaller panels consisting of three members each.

Moreover, Battista noted, the NLRB has awarded more than $91 million in back pay this year from companies that have violated workers rights. At the same time, unions win nearly 54 percent of secret-ballot elections in organizing drives the board supervises.

But it's the handful of groundbreaking cases in which the board splits along party lines that generate all the controversy.

Earlier this month, the board denied a group of disabled janitors in Florida the right to organize a union. In the 3-2 decision, the Republican board members ruled that the disabled people, who performed their janitorial work as part of a rehabilitation program, were more patients than employees, and so not eligible for union membership.

The Democrats on the board dissented. They noted that the disabled janitors had the same supervisors, received the same pay and followed the same rules as nondisabled janitors working for the same company who were eligible to join a union.

Last June, in a case involving graduate teaching assistants at Brown University in Rhode Island, the board reversed a 2000 decision by the then-Democrat-controlled NLRB that allowed teaching assistants at New York University to join a union. The Brown ruling was a major setback for the UAW, which hopes to grow by appealing to workers at Brown and elsewhere
outside its traditional manufacturing base.

Battista said the pro-union decision in the New York University case upset many years of law.

"When I looked at the facts, I concluded that the graduate students were primarily students and not employees in an economic relationship, and that collective bargaining was not suited for that kind of relationship," he said.

But Sheyda Jahanbani, a PhD student who teaches U.S. history to undergraduates at Brown, said the decision deprived her and others of the representation they need. Like teaching assistants across the country, she faced what she believed to be an unrealistic teaching load and other problems. In her first semester, she handled a class of 102 students while earning $12,800 a year for what was supposed to be part-time work.

In a set of rulings particularly galling to the UAW, the board said in June that it would grant review to cases challenging aspects of the UAW's use of card-check organizing drives. In these cases, involving the Dana Corp. and Metaldyne Corp. plants in Ohio and Pennsylvania, the companies had agreed to recognize the union without the formality of a secret-ballot election if a majority of workers signed union cards. A handful of workers, backed by the Right to Work Legal Defense Foundation, an organization that helps workers challenge such agreements, asked the NLRB to overturn the rulings.

The UAW and other unions favor card-check campaigns because they can shave years off the process of holding an NLRB-sponsored secret-ballot election for employees to vote on whether to join a union.

But opponents of card-check campaigns say workers can be coerced into signing cards, and that only an NLRB-monitored secret-ballot election guarantees a fair choice.

By accepting those cases, the board signaled that it might be willing to curtail card-check campaigns and so-called neutrality agreements between unions and companies in the future. If that happens, the NLRB could be taking away one of unions' most successful organizing tools.

All sides agree that these cases would have been decided differently had Democrats controlled the board. And everyone expects that, should Kerry win, the board may revisit the issues and deliver different rulings.

"Undoubtedly," Raudabaugh said. "This is the very kind of things that concerns all of us, because it does show the public the political underbelly of the institution."