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David L. GregoryAugust 28, 2006

It is both sad and ironic that the National Labor Relations Board, the independent federal agency created during the Depression to safeguard the workers’ right to unionize, has instead been complicit in the demise of workers’ rights. The disturbing trend, which began during the administration of President Ronald Reagan, has accelerated dramatically over the last few years. In self-defense, beleaguered labor activists have devised creative procedures, like card checking, in order to do an end-run around board-supervised elections. This is the story of what has gone wrong and what labor organizations are doing about it.

Originally the board was set up to enforce the National Labor Relations Act (1935), the cornerstone federal law that protects workers’ rights to unionize in the private sector. Section One of the act recognizes the workers’ need for legal protection, which rests on the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association. It also notes that such inequality substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions.

Congress declared it the policy of the United States to address such problems by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

The act is clearly written. It is also supported by more than a century of Catholic social teaching, beginning with the church’s first great labor encyclical, Pope Leo XIII’s Rerum Novarum (1891).

Senator Robert Wagner, the primary author of the National Labor Relations Act (also known as the Wagner Act) had paid close attention to the church’s labor encyclicals, which influenced not only his thinking but his language. The act’s language could almost have been lifted from Quadragessimo Anno (1931), Pius XI’s encyclical, so close is the text in places.

It is particularly worth noting this year, the 25th anniversary of Pope John Paul II’s first labor encyclical, Laborem Exercens (1981), that the statutory and policy language of the N.L.R.A. and the soaring rhetoric of the church’s various labor encyclicals are congruent, symmetrical and synergistic.

The Wagner Act not only set forth an extensive series of legal protections for workers, but established a system of regional offices, attorneys and judges to adjudicate labor disputes.

A History of Bipartisan Support

Throughout Democratic and Republican administrations, from Presidents Roosevelt to Carter, the Wagner Act and the National Labor Relations Board worked well. The high point for labor unions, when one-third of the private sector workforce was unionized, was reached during the term of President Dwight D. Eisenhower, a Republican.

While the Nixon and Ford administrations could be described as pro-employer, they were not overtly anti-labor. Government adhered to a bipartisan operating philosophy through the Carter administration. Each president appointed a chairperson and four other N.L.R.B. members, three of whom could be, by law, from the appointing president’s political party. Yet board members were routinely appointed to multiple and successive four-year terms, which gave the board stability and institutional memory. It was common to see board members with more than a decade of service. Mr. John H. Fanning, who was appointed to the board in 1957 by President Eisenhower, was reappointed by every president through Carter, who named him the chairperson.

Even with bipartisan support, however, much work needed to be done. The remedies available to sanction unfair labor practices were too few and too weak. The Wagner Act made no provision for jury trials, compensatory or punitive damages, or attorneys’ fees paid to successful fired employees, who could try (if the N.L.R.B. were to reverse their firing) to be reinstated with back pay and benefits.

Early on, savvy employers realized that without the threat of punitive damages it was in their own interest to protract and delay proceedings and to appeal adverse board decisions to the federal courts. Management lawyers could avoid complying with the federal law for a decade or longer, while the employer they represented continued to operate without a union. Labor unions suspected what academic studies later confirmed, that unscrupulous employers deliberately fired pro-union employees when the workforce was first considering whether to unionize, which chilled enthusiasm for the union’s campaign.

The Carter administration, despite Democratic majorities in both the House and the Senate, proved unable to end employer stalling and overt defiance of the labor law. During the Carter years, the United States experienced high oil prices, stagflation, the near-bankruptcy of Chrysler and the hostage crisis in Iran. The great labor unions that had built the country in the post-World War II period started to decline, as the private manufacturing, industrial sector lost jobs to workers in Mexico and, increasingly, China.

Reagan the Turning Point

Any residual spirit of bipartisanship evaporated during the administration of President Ronald Reagan. Mr. Fanning was not reappointed to the board. And even as the president crushed the hopes of the striking air traffic controllers, he also appointed to the N.L.R.B. consultants who had built lucrative careers from smashing unions. The Reagan board also repudiated dozens of established board decisions and presumed to rewrite the law itself, with complete impunity. Union membership in private sector employment steadily deteriorated.

President Clinton’s administration made few gains, despite efforts to restore the weakened National Labor Relations Act. Professor William B. Gould IV, of Stanford University, whom Clinton appointed board chairman, was frustrated to find a bureaucracy that actively undermined his re-examination of recent anti-labor decisions. He left office infuriated by his inability to effect change and later recounted his efforts in his political memoir, Labored Relations (2001).

The Current Situation

President George W. Bush’s administration reports low inflation and significant job creation. But even in the fields where unions are common, few workers are sanguine about the future. The manufacturing sector, with its high-wage unionized jobs, is a ghost. Almost 50 million people, including low-wage service workers, are without health insurance; the percentage of workers covered by pension plans is dwindling steadily.

On Labor Day 2006, less than 8 percent of the private sector workforce is unionized. The A.F.L.-C.I.O. has splintered, perhaps irreparably. A number of major unionsamong them the Service Employees, Hotel and Restaurant Workers, Teamsters and Laborershave left it to form the coalition Change to Win.

In light of these shifts, the initiatives of the current National Labor Relations Board may seem inconsequential. But they are not. The board is chaired by Mr. Robert J. Battista, an accomplished management-side labor lawyer from a prominent law firm in Detroit. He and his colleagues have quickly demolished the few centrist decisions put in place by the Clinton board. Consider the following three decisions from 2004, which represent just a few of the decisions likely to have far-reaching, adverse effects on workers.

In its Brown University decision, the N.L.R.B. found that graduate teaching assistants at private universities did not have the right to unionize. It reasoned that teaching assistants were students exclusively, not employees. Yet most graduate assistants teach large classes of undergraduates, work for little more than minimum wage and seldom receive health insurance as a benefit.

The decision repudiated the Clinton board’s New York University decision, which found that teaching assistants were employees eligible to unionize under the terms of the National Labor Relations Act.

A broader danger would be a board that is philosophically disposed to find that knowledge-based, white-collar workers are ineligible for the protections of the National Labor Relations Act. One could argue that if organized labor is to have a future, such workers must become unionized.

The N.L.R.B. has also refused to allow nonunionized workers to have a representative present when they are interviewed as part of investigations of possible workplace misconduct. This right was secured for unionized workers in 1975, when the U.S. Supreme Court held that unionized workers being interviewed under such circumstances have the right to have a union representative present.

The Clinton board extended that right to representation (called the Weingarten right) to the 92 percent of workers who are not represented by unions. That position has now been reversed. In its I.B.M. decision, the Bush-appointed board invoked the red herring of national security to deprive nonunionized workers of their right.

In the Holling Press case, a terminated worker who asked a fellow worker to be a witness in support of her sexual harassment complaint was found to be ineligible for protection under the National Labor Relations Act. The board reasoned that the harassed worker was on her own and that the harassment issue was hers alone, and that such attempted solidarity for the purposes of mutual aid and protection did not fall within the meaning of the act.

An Alternative to Voting

On one front, unions have achieved some recent success. It concerns the election process by which workers decide whether to join a union or not. While the N.L.R.B. was set up to supervise such elections on behalf of workers, the process has become contentious, and elections have been replete with unlawful firings of pro-union workers. Unions win half of such elections and negotiate successful collective bargaining agreements in half of the elections they win. This means that only one in four N.L.R.B.-supervised elections leads to a recognized union and a labor contract for the unionized workers, a success rate of 25 percent.

To obtain better results, unions have sought an alternative process called card checking, which sidesteps the N.L.R.B.-supervised election altogether. Card checking requires the employer’s consent and involves a few sequential steps. First, the union presents evidence to the employer that a supermajority of the workers have signed union authorization cards. Second, an independent party (often a prominent labor arbitrator or a respected local clergyperson) verifies the authenticity of the evidence. Third, the employer voluntarily recognizes the union as the exclusive representative of all of the employees. Fourth, the employer and the union negotiate a collective-bargaining agreement.

Card checking has proved to be quite effective: 70 percent of workers who have joined unions in the past year have done so through the card-check method, up dramatically from only 5 percent of workers 20 years ago. Recent card-check successes include: 4,600 workers at the Wynn Las Vegas hotel casino, 16,500 workers at the Cingular telephone company, 5,000 janitors in Houston and service workers at the University of Miami.

Recently the N.L.R.B. has suggested that it has strong philosophical misgivings about card checking. But legislators have taken up the cause. Currently there are 210 co-sponsors in the House, and 42 in the Senate, of legislation that would give unions the right to the card-check process, rather than leave it to the employer’s discretion. Even if the law is passed, however, the president could veto it.

Overall, the situation for organized labor today is grim. The array of anti-worker decisions coming from the current National Labor Relations Board is alarming. Neither F.D.R. or Senator Robert Wagner, nor Popes Leo XIII or John Paul II, nor for that matter even Presidents Eisenhower, Nixon, Ford or Bush Sr. would understand, let alone appreciate, the convoluted rationale upon which the current board has constructed its jurisprudence.

I propose a general strike, but that is another matter for another Labor Day.

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