Labor Board's Critics See a Bias Against Workers
By STEVEN GREENHOUSE

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."

Copyright 2005
The New York Times Company |