For years I've been writing that Robert Battista, former chair of the National Labor Relations Board, has been doing the bidding of anti-union employers by dismantling protections for workers under the law.  Apparently, he's now going to be doing the bidding of anti-union employers and making a lot more money at notorious unionbusting firm Littler Mendelson (see a sample of their unionbusting strategies: Littler Mendelson’s Dos & Don’ts).

Battista asked Bush to withdraw his nomination as Labor Board chair, which was going nowhere, and joined the firm that John Logan of the London School of Economics called one of the "nation’s first law firms to conduct aggressive union avoidance campaigns."

Now Battista can make money telling employers how to exploit the law he helped to weaken in order to prevent their workers from organizing.

As more jobs stray from the traditional 9 to 5 office scenario, employee discussions over lunch in the break room are becoming a thing of the past.  Email has in many ways filled that gap, enabling employees to communicate about issues of common interest. 

But at Uloop, a social networking site aimed at college students, workers were fired 20 minutes after they first discussed forming a union on the company’s online message boards. 

The employees filed a charge with the National Labor Relations Board, claiming that their termination was illegal because their communication was protected by labor law.  This charge will likely be a test of the precedent-setting Register-Guard case, where the Labor Board denied protections for employees who email each other about union-related issues, failing to recognize technological advancements in workplace communication.  

Here’s a tale told far too often: workers have come together to vote for a union, but don’t have a contract in their workplace.  Why?  Their employer unlawfully refuses to bargain with them and the National Labor Relations Board fails to enforce our weak labor law. 

Ten years after Goya Foods employees in Miami voted for a union, a circuit court judge ordered the company to finally negotiate a contract.  This is yet another example of why Congress must amend labor law to grant workers the right to first contract arbitration, ensuring that their vote for a union actually leads to a union contract.

The American workplace is like the Wild West, where employers rampantly break the law to suppress union organizing without facing meaningful repercussions.  The National Labor Relations Board cannot assess fines against lawbreaking employers, and forcing employers to comply with its orders can involve years of petitioning federal courts—often to no avail.  But employers in Arizona may now be shaking in their boots, as it appears that Wyatt Earp has come to town.  Judge David G. Campbell of the U.S. District Court in Arizona just held a company owner in contempt of court [subscription required] for refusing to comply with an order to reinstate workers he fired for organizing, forcing him to surrender to U.S. Marshall custody.

David Bowers, the owner of an electric company in Arizona, was ordered by a circuit court in 2005 to reinstate four fired workers with backpay, after the Labor Board had ruled that the firings were illegal reprisals for the workers’ union activity.  According to an article in the BNA Daily Labor Report, the NLRB tried for years to get Bowers to comply with the order, but he refused.  After the NLRB approached the federal court with the case, Judge Campbell found Bowers in civil contempt of the court.  The NLRB Regional Director who had pursued Bowers told the BNA that federal judges rarely take such action in NLRB cases.  It’s about time someone brought some law and order to the workplace.

I’ve read countless National Labor Relations Board cases involving employers who suppress employees’ rights by using supervisors to do their dirty work.  With their close contact and influence over employees, supervisors can be more effective than upper-level management in muzzling collective action.  Yet in one recent case, supervisor Barbara Lockerman refused to reveal the names of her employees who protested the working conditions at the Texas Dental Association.  She was fired for this act of solidarity.

60 million non-union workers say they would join a union if they could, yet only 16 million workers belong to unions in the United States.  There are many ways to explain this discrepancy—for instance, aggressive unionbusting by employers and changes in the global economy—yet it’s hard to deny the impact of our weak labor law, made much worse by the Bush-appointed members of the National Labor Relations Board. 

Workers have successfully organized through the voluntary recognition process for years, yet the Republican majority of the Board undermined this process in their recent Dana Metaldyne decision. A group of AT&T technicians encountered this roadblock in their efforts to form a union this year.

Yesterday I attended a Senate subcommittee hearing on labor law where National Labor Relations Board Member Wilma Liebman gave a damning assessment of the state of labor law in this country.

Liebman testified that the law is not responsive to changes in the global economy and workplace, and that the Board is not acting vigorously to protect workers from employers “intent on killing an organizing drive.”  As evidence of a loss of confidence in the NLRB election process among workers and their unions, she cited the dramatic decline in representation petitions (a 41 percent drop between 1997 and 2006). 

Labor Board Chairman Peter Schaumber struck a far sunnier tone on the state of the NLRB, citing the fact that in fiscal year 2007, 93 percent of all elections were conducted within 56 days (only eight weeks of anti-union captive audience meetings before you get to vote!). 

His optimism further amazed me when he responded to Senator Tom Harkin’s question as to why the Board had not required employers post a notice in the workplace outlining employees’ rights to organize, the same way employers are required to do for other employment laws.

An injunction can be used by the NLRB to quickly mitigate the chilling effect that firings have on organizing efforts by getting workers back on the job, pending an eventual Board decision.  Yet in this case, the process took over a year:

• February 2007: The workers were fired.
• May 2007: The NLRB issued a complaint.
• July 2007: The NLRB filed for an injunction after an administrative law judge heard the case.
• November 2007: A magistrate judge approved the injunction. The employer objected.
• March 2008: A federal judge overruled the employer’s objections and ruled in the NLRB’s favor. 

It’s still crucial for the NLRB to pursue injunctions to mitigate the effects of firings, and the Employee Free Choice Act would mandate that the agency pursue this remedy during organizing and first contract campaigns.  Yet the Frye case reveals that even the best legal remedies far short, and underscores the need for greater public pressure to hold lawbreaking employers accountable.

Circuit court judges appointed by Presidents Reagan and G.W. Bush ruled recently that a 2005 decision by the Bush NLRB was unreasonable.

The Bush Board found that the CEO of Stanadyne Automotive Corp. acted legally when he prohibited “harassment” in response to what he described as “union supporters harassing…fellow employees” during the organizing campaign.  Yet the U.S. Court of Appeals for the Second Circuit disagreed, and ruled that since the employer had already announced one illegal rule prohibiting workers from discussing unions with their coworkers, “no reasonable employee could fail to infer that the rule against 'harassment’…was intended to discourage protected election activity.”

In a rebuke of the Bush Board, an agency of the United Nations ruled that the NLRB’s decision to broaden the definition of supervisor was in violation of core international labor standards.  The International Labor Organization (ILO) charged that three 2006 supervisor decisions “appear to give rise to an overly wide definition of supervisory staff that would go beyond freedom of association principles… [and] might lead to the exclusion of wide categories of workers from protection of their freedom of association rights.”