Bush's Other War

At the national labor relations board, the president's appointees change the rules

It has nothing to do with Iraq, terrorism, or taxes, but here's another issue right at the heart of what's at stake in next month's election:

As president, George W. Bush gets to fill three of the five seats on the National Labor Relations Board, the panel that serves as a kind of Supreme Court for labor issues. Bush didn't get his three-member majority until last December, when he placed a conservative Washington, D.C., attorney named Ronald Meisburg on the panel. Meisburg's nomination had been blocked in the Senate, so Bush made what's called a recess appointment, meaning Meisburg gets to serve only until the Senate recesses next month.

But the new Republican majority has been working overtime, racing the election clock and churning out decisions that have rolled back advances that unions and workers had made under prior boards.

In June, by a 3-2 vote along party lines, the Bush board overturned a 30-year-old rule that provided one of the few protections afforded employees in a non-union workplace: the right to have a co-worker accompany them when summoned to the boss's office for a disciplinary interrogation. In July, it reversed a landmark 2000 decision by ruling that graduate students—who now do the bulk of classroom teaching on college campuses in return for little pay and few benefits—are students, not workers, and thus not employees for purposes of bargaining.

That decision was aimed at disarming successful union organizing drives at campuses around the country, including New York University, Columbia, and Brown. The ruling overturned a unanimous, bipartisan vote taken by the Clinton-era board, which concluded after months of study that the workforce at many large universities had changed dramatically, with adjuncts and graduate students increasingly replacing full-time faculty.

Even those at the workplace margins haven't been able to catch a break. In a little-noticed vote last month, the board ruled against a group of disabled janitors in Florida who were seeking the right to join a union. The board said they were not entitled to do so because they were part of a rehabilitation program. The two dissenting Democrats pointed out that the janitors reported to the same supervisors as the rest of the staff and carried much the same workload. The decision was also out of sync, they said, with the Americans With Disabilities Act, which seeks to move the disabled into mainstream society. Barring the janitors from joining a union continued the "needless segregation of those workers," the minority members stated.

Any day now, the board is expected to rule on a matter that could drastically alter the way that workers win union recognition. The board now appears poised to hobble a decades-old practice called "voluntary recognition agreements," in which employers agree to recognize a union if a majority of employees, usually certified by a neutral observer, have indicated a desire to have union representation.

Such voluntary agreements, often carried out as "card checks"—literally checking the number of union cards signed by employees—have been enshrined in labor law since the 1930s. But in recent years unions have increasingly utilized them as an alternative to official NLRB-certified elections, which, unions say, often encounter lengthy delays and heavy-handed employer tactics.

Last year, the Hotel Employees and Restaurant Employees International Union, which has used card checks effectively in many organizing drives, won voluntary representation of workers at the Borgata, Atlantic City's giant new casino. The Communications Workers of America has used card checks to organize Cingular wireless services, an agreement that could be extended to AT&T upon merger.

The AFL-CIO estimates that some 200,000 nongovernment workers were organized last year, but only about a quarter of them through NLRB elections. "Our workers are voting with their feet," said Andy Levin, who directs the Voice at Work project of the AFL-CIO. "They're demanding a fair process."

These are decidedly modest successes in a nation where an anemic 8 percent of private-sector workers are in union shops. But even these slight gains attracted the attention of pro-management foes. This year a right-wing anti-union group, the National Right to Work Committee, challenged voluntary agreements won by the United Auto Workers at two auto-parts plants. Citing long-established precedent, regional NLRB officials brushed the challenges aside. But in a move that surprised even some Republicans, the central board agreed to review the cases, stating that "changing conditions in the labor relations environment can sometimes warrant a renewed scrutiny," adding that "the use of voluntary recognition has grown in recent years."

The board apparently was in a rush to judgment. It set a short six-week date for briefs to be filed on the matter, rejecting standard requests for a short extension.

"They want to get it done because they know the elections are around the corner, and they want to get a decision out before a new administration can come in and make new appointments," said David Bonior, the former Michigan congressman who now heads a labor-backed group called American Rights at Work.

Unions have good reason to seek voluntary agreements, Bonior said, given the increasingly hostile attitude of management during NLRB elections.

"Our figures show some 90 percent of workers are forced to have one-on-one meetings with managers" when union elections are pending, said Bonior. "They are compelled to take part in captive-audience meetings and face interrogations."

Faced with union drives, 25 percent of employers fire at least one worker for organizing activity, while half of employers threaten to relocate their businesses or call immigration authorities, according to a 2000 study by Kate Bronfenbrenner, director of labor research at the Cornell School of Industrial and Labor Relations.

"If you're fired, there is really no penalty for the employer," said Bonior. "You may be hired back, but that's about the worst penalty. There are no mean- ingful sanctions."

Under President Clinton, the board took a small step toward correcting situations in which employers egregiously violate the law, by allowing unions access to workers on site, and giving them the ability to place notices on bulletin boards. In June, the new Bush majority rejected those remedies, stating that a simple posting of the board's cease-and-desist order was sufficient.

Organized labor usually tries not to antagonize the board, regardless of its political makeup, since its members carry so much clout. But this August, the executive council of the AFL-CIO rolled out some of the harshest rhetoric heard in years, stating that the NLRB "has entered one of the most shameful chapters in its 69-year history" and had been "perverted into a dangerous enemy of workers' rights."

Despite some early flirtations by some labor leaders with the Bush administration, most union officials got the message when the president—citing security precautions—stripped some 200,000 workers at the new Department of Homeland Security of collective bargaining rights. The move undid years of union organizing work at JFK International Airport, where 75 percent of airport security workers had signed cards saying they wanted to be represented by the American Federation of Government Employees.

"As a New Yorker who saw how unions responded to the tragedy of 9-11, I think that is the one that gets people most agitated," said Jeff Grabelsky, a labor economist at the Cornell School. "Union members had a heroic response to the attack, and then, with a stroke of the pen, they lost the right to organize. To me, it's the equivalent of Reagan's firing of the air traffic controllers."

As a kind of goal-line stand against that trend, union officials this year got congressional supporters to introduce the first new labor legislation in years that would significantly lower the bar for union recognition. Called the Employee Free Choice Act, it would guarantee workers the right to choose unions via card checks, provide arbitration for first contract disputes, and increase penalties for violations. Despite its 31 Senate sponsors and 207 in the House, the bill has little chance of passage. But it has become something of a rallying cry for labor and has been backed by the Kerry-Edwards ticket.

At the same time, the campaign is labor's main focus. The AFL-CIO has committed $45 million to the effort to oust Republicans from the White House; the Service Employees International Union is spending $65 million; and the American Federation of State, County and Municipal Employees is putting $48 million into the race.

"There is so much at stake," said Bonior, the former congressman. "All these things they've done are so central to the Republican political agenda."

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