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The
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 meetings.
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 condition.
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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