What meager portions of justice available to American workers over the past eight years have been found more often in the small, windowless hearing rooms of the National Labor Relations Board than in the marbled halls of congress.
Insisting it knew what was best for the country, the Clinton-Gore administration rolled over organized labor’s anguished protests and joined Republicans in shepherding through congress the North American Free Trade Agreement and other trade pacts, legislation that has spurred the disappearance of thousands of American jobs that paid a living wage. NAFTA alone has cost the country more than 440,000 jobs, according to the union-sponsored Economic Policy Institute.
But while overseeing such wholesale labor losses, Clinton kicked in on a retail level by restoring the much damaged NLRB to a semblance of its former self.
Now the Bush administration is expected to move quickly to reverse those reforms.
Established by the Depression-era National Labor Relations Act, the NLRB has been both savior and bane of unions over the years. The board’s bland, cramped rooms are where workers seeking relief from employer wrongs wind up after their cases have finally made it to the top of the board’s towering pile of complaints. Its administrative-law judges act as arbiters of basic fairness in employer-employee relations, deciding complaints of unfair labor practices and overseeing the certification of union bargaining units.
Under the administrations of Ronald Reagan and George Bush (the former), the board was headed by vocally pro-employer officials and put on a starvation diet. Its backlog of complaints filed by employees with the NLRB agency grew to more than 7000. Election certification hearings were backed up so far that by the time the board was able to rule, the workers who had wanted a union in the first place were long gone.
“We represented a group of workers seeking a union at a furniture plant in North Carolina,” recalled labor lawyer Craig Livingston. “The board took four and a half years to decide; by that time all the workers had been fired.”
David Prouty, attorney for the clothing workers union UNITE, represented about 600 African American women working at a drapery manufacturer in Georgia who had voted two-to-one in favor of joining the union. Shortly after the vote, the company fired 120 pro-union employees. The union asked the board for injunctive relief by reinstating the fired workers while the election went forward. “The [NLRB’s] general counsel, a Bush appointee, just sat on the case; he wouldn’t bring it before the board,” said Prouty. Three years later, a local administrative-law judge for the board finally ruled the firings illegal, ordering nearly a million dollars in back pay.
Such firings became commonplace, union officials reported. “Labor relations seems to be the only legal practice where the client is told to break the law,” said New York State AFL-CIO director Denis Hughes.
Fast-forward to the Clinton years. The appointments of a new chairman and general counsel for the agency, offered in 1993 but blocked for nearly a year by congressional Republicans, began to usher in dramatic changes. After taking office, the new appointees dusted off the board’s long-unused power to win injunctions against the activities of anti-union employers; they established new priority criteria to begin reducing the agency’s mountainous backlog. In major decisions rendered over the past three years, they wrenched the board into the 21st century, issuing key rulings that recognized the changing face of work today.
Last year, a board decision made it easier for temporary workers, a fast-growing segment of the nation’s workforce, to unionize. Another decided that non-union employees have the right to representation when called into disciplinary meetings with the boss. The board even sent a rocket to the traditionally Democratic-friendly groves of academe, ruling that graduate teaching assistants at New York University were, in fact, employees, and thus eligible to join a union. It upheld a similar ruling that medical interns and residents were also employees, setting the stage for union organizing drives at hospitals around the country.
“Residents all over the country began looking to exercise their new rights,” said Mark Levy, executive director of the Committee of Interns and Residents. Managers at two health care institutions voluntarily agreed to recognize the union, reported Levy. “In the past the employer wouldn’t have even had to talk to us.”
In one of the most dramatic examples of redressing old grievances, the board issued an order against one of the most recalcitrant and anti-union Southern textile firms, Fieldcrest Cannon, which had successfully frustrated 25 years of union organizing efforts. Giving the union unprecedented access to company property in an effort to assure a fair election, the board ordered the firm to allow the union, UNITE, to use the employee bulletin board and visit the break room. In another shift from past practice, the board let the union address workers on company property immediately following mandatory anti-union meetings held by employers. The board also ordered that the election—later won by the union—be held off company grounds to make sure voting was free of intimidation.
Union lawyers make no bones about the board’s recent direction. “In the last eight years the board has been decidedly pro-labor and pro-worker,” said attorney Vincent Pitta, who represents hotel workers and other unions.
Viewed from the other side of the negotiating table, the board’s decisions have outraged management.
Under Clinton, the NLRB has espoused “a wild, starry-eyed, liberal interpretation of the world,” said Albert DeMaria, a prominent New York City management attorney and editor of the newsletter Management Report for Nonunion Organizations.
Republicans vowed to rein in the board, and now, thanks to a rare alignment of the board members’ five-year terms, the incoming president will have the opportunity to totally reshape the board, appointing four of the panel’s five members. It’s a development that has employers salivating and labor unions quaking.
“This is the biggest issue for the labor movement in terms of why they fought so hard for Gore,” said Greg Tarpinian, executive director of the pro-union Labor Research Association.
“The determination of bargaining units, the length of time it takes to hear a case, handling of unfair-labor-practice complaints, all those things you would expect to start tipping in a pro-business direction,” said Tarpinian.
A new pro-employer board will also have the opportunity to reverse or curb many of the Clinton board’s rulings as soon as similar cases are brought to it for consideration.
Among them are those decisions that have expanded the traditional definition of employees, such as the temporary-worker, graduate-student, and medical-intern rulings.
The prospect of a new, actively pro-employer board is so unsettling to some labor leaders that one New York City union official pleaded not to be named for fear of drawing attention to board rulings that gave his union the right to organize among a group of workers previously ruled off limits.
“I don’t want to make our contracts a target for some bright, ambitious young Republican lawyer with red suspenders,” he said.
Beyond overturning past decisions, employers are also hoping that a new Bush board will move to hobble union political clout by aggressively enforcing past court rulings that limit the right of unions to spend dues money on politics without member approval. During his campaign, Bush called for national “paycheck protection” legislation that would compel unions to get permission from individual members for such spending.
Such a bill would face an uphill fight in Congress, where union-backed Democrats (and many Republicans) are wary. But interim steps could be taken by the NLRB without waiting for congressional action.
Unions will be looking to Democratic muscle in the equally divided Senate as their best hope to check anti-labor appointments at the board and elsewhere.
“Obviously Bush is going to go after the unions, but, thanks to the Senate, he’ll have less of an effect than Reagan,” said union lawyer Livingston. “There were people appointed back then who could have served on the Reichstag fire case.”