----- Original Message -----
From: "Max Sawicky" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
>O.K. That's something. You are implying that a
>Dem appointed NLRB will be significantly *more*
>conducive to trade union growth than a Bush one.
>Of course, this is one data point. I wonder if
>those with knowledge in this area might comment
>on the pattern of such decisions over 1992-98
>compared to years after 1980.
I'm not sure if this got posted, so I'll repost this article about Clinton's
NLRB:
The NLRB under chairman Bill Gould, a staunch progressive pro-labor
scholar, has reversed many of the conservative decisions of the Reagan-Bush
years and advanced workers rights in a number of areas - from extending
bargaining rights to temp workers in a workplace to upholding the right to a
witness in interrogation by employers for all workers even when a union is
not present. Given the weakness of the NLRB under the law and the
conservative Circuit
Court reversals of its decisions in many cases, there are limits to what it
can do for workers, but it has been broadly hailed as a very pro-union
Board. See attached article from the National Law Journal.
====
Is NLRB in a Pro-Labor Mood?
Recent rulings give temps and nonunion workers new rights
Michael D. Goldhaber
The National Law Journal
October 4, 2000
As the Clinton era draws to a close, the National Labor Relations Board is
under fire for disregarding its own old precedents and tilting toward labor.
Union lawyers -- pleased with two major recent rulings, on temps and on the
disciplining of nonunion workers -- say that management lawyers are playing
a game of hype and intimidation.
Representative John Boehner, R-Ohio, chair of the House labor subcommittee,
chided the board at a Sept. 19 hearing: "I cannot look at the recent
decisions and help but conclude that activism is alive and well."
The official statistics show that this year the board has issued eight
decisions overruling NLRB precedent -- seven of them in the past three
months. There were 14 such reversals in 1999 -- for a total of 22 in the
past two years.
That compares with a high-water mark of 18 overrulings in 1984, when the
board was controlled by Republicans and was seen as pro-management. With the
current board controlled by Democrats, labor attorneys say, the recent
reversals were broadly pro-labor.
"I do not claim that it shows bias," Edward Miller, a former Republican NLRB
chair, has written, "although I have seen no cases as yet in which this
board has overturned any past decision in a way which would favor
employers."
Kenneth Dolin, head of the labor practice at Chicago's Jenner & Block,
suspects a secret agenda to issue pro-labor decisions before Clinton's term
ends. NLRB Chairman John Truesdale, 79, who came out of retirement to
preside over the Clinton twilight, insists that his only agenda is to reduce
the backlog. "A large number of old cases had piled up, raising major
issues," says board spokesman Dave Parker.
Bill Gould, the NLRB chair from 1994 to 1998, says that because of
agency-Congress dynamics, overrulings tend to be clustered at the end of the
fiscal year, which creates an illusion of radical change. He calls this
summer's significant rulings "long overdue."
Can any trend be discerned in the new decisions? "For the most part," says
Dolin, "they try to extend collective bargaining to the unorganized." Not
all experts agree. But it's clear that the NLRB has extended the coverage of
labor laws. Says Roger King, of Jones, Day, Reavis & Pogue, "You're going to
have many employers who never thought of the word 'union' having to pay
attention to the NLRB."
FOUR MAJOR RULINGS
The controversy centers on four major rulings, two this summer and two from
1999. Each overturned an NLRB precedent of at least 15 years' vintage. All
these issues are likely to reach the federal courts, but -- because the
rulings apply retroactively -- counsel say that corporate managers ignore
them at their peril.
. M.B. Sturgis/Jeffboat Division, 331 NLRB No. 173 (Aug. 25, 2000), lets
temps join a collective bargaining unit with the regular employees alongside
whom they work if they share a "community of interests," even over the
objection of both employers.
. Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (July 10, 2000),
extends to nonunion workers the right to be accompanied by a co-worker to a
meeting that might result in discipline.
. Boston Medical Center,330 NLRB No. 30 (Nov. 26, 1999), defines interns,
residents and fellows as nonsupervisors; makes them eligible to organize.
. Mississippi Power & Light Co.,328 NLRB No. 146 (July 26, 1999), defines
power dispatchers as nonsupervisors; also makes them eligible to organize.
Professor Charles Craver of George Washington University National Law Center
argues that all of these overturnings, except Epilepsy Foundation, were
clearly justified by changed circumstances. Sturgis responds to the
emergence of temps as a large, permanent part of the work force. Boston
Medical, he says, responds to the evolution of hospital residencies from an
educational arrangement to a professional arrangement. And Mississippi Power
suggests that, perhaps especially in technical or professional settings,
"[g]reater autonomy, responsibility, and accountability are being afforded
to workers at all levels of the organization."
Union membership increased by 265,000 in 1999, and Dolin, for one, thinks
legal developments paved the way for the unions' change of fortune. But the
general counsel of the AFL-CIO, Jonathan Hiatt, and the GC of the
fastest-growing union, Judith Scott of the Service Employees International
Union (SEIU), agree that there is little or no connection between the
membership gains and legal changes. Hiatt says most of the growth has come
through non-NLRB elections. Scott attributes the growth to market forces and
organizing drives, although she concedes that Boston Medical opens an
important new field for recruitment: young doctors.
The dissent in Sturgis said the ruling aimed to "facilitat[e] union
organizing in the modern workplace." But pro-labor and independent observers
argue that Sturgis was no home run for unions.
Craver notes that the management in Sturgis was actually the party that
supported joint bargaining for the temps. Temps have historically not been
union-friendly, he says, so grouping them with regular employees may dilute
union support. "The decision will, in the long run, favor management," he
predicts.
Hiatt of the AFL-CIO, fears that, depending on how "community of interests"
is interpreted, the decision may affect only "permatemps" and not short-term
temps. He also complains that the NLRB timidly declined to redefine what it
takes for the temp agency and the contracting company to be called joint
employers. "I see this decision as a positive development," he says. "Is it
major? I don't know. That remains to be seen."
Dolin maintains that Sturgis has the potential to make organizing easier for
all types of temps. What's clear, he says, is that it will lead to more
litigation costs, as it outlines a fact-specific inquiry.
NONUNION NO LONGER?
The generalization all observers seem to accept is that the new decisions
broaden the scope of labor law coverage. "What they do," says ex-Chairman
Gould, "is to bring into legislation regarding the work force those who had
been previously excluded."
Gould hastens to add that there's nothing new or radical about the NLRB's
regulating nonunion employers. "Since this law was passed in the '30s, it
has always applied to nonunion workplaces," says Hiatt.
Craver and Gould both argue that the Clinton NLRB has been far less activist
than the Reagan NLRB under Donald Dotson. In some cases, the board is simply
reversing a Reagan-era reversal.
"Management attorneys have basically been crying wolf," says Scott of the
SEIU. "It's their main weapon against the board doing anything innovative.
This is an agency which has been relatively steady in its case law analysis
and has done nothing dramatic to warrant that type of attack. They're making
mountains out of molehills."
Board decisions have been fully affirmed by 79 percent of reviewing courts
this year, a rate near the top of the historic range.
