OVERVIEW

Millions of workers who want to form unions or maintain their current union representation will see their labor rights dramatically curtailed, if the National Labor Relations Board ("Labor Board") maintains its recent ruling trend.  Some workers who have already successfully created collective bargaining units at their workplaces will see their eligibility status switched on them.  Others who are currently coming together in labor unions will see options for organizing eliminated.  These rulings come at a time of significant worker organizing activity, with thousands of vigorous worker campaigns across the country and a national campaign to improve labor rights in action.

The Labor Board is the federal agency charged with protecting the rights of millions of private sector employees to form unions and to engage in collective bargaining, as outlined in the National Labor Relations Act (NLRA).  Presidential recess appointments on January 17 of Peter Kirsanow, a management lawyer, and Dennis Walsh, a labor attorney, signal that the Labor Board will soon begin to decide major cases.  The expected rulings on long-standing, precedent-setting cases could redefine how unions are formed and who is eligible to join them.  Of greatest concern are cases on voluntary recognition agreements involving card check, the way most workers join unions today.  Workers and their advocates are also watching cases where the Labor Board could decide to eliminate labor protections for broad segments of the workforce, including nurses and other skilled workers in such industries as healthcare, building trades, and transportation, by reclassifying them as supervisors.  The cases before the Labor Board all have a common element—a drive by anti-union forces to dissolve labor unions, the proven, democratic check on greed and malfeasance.

Workers' choice to form unions to improve their lives has been eroded, in every practical sense, even before these groundbreaking cases came before the Labor Board.  Employers are increasingly using aggressive maneuvers to exploit already weak labor laws.  When faced with organizing drives, 30 percent of employers fire pro-union workers, 49 percent threaten to close a worksite if the union prevails, and 51 percent coerce workers into opposing unions with bribery or favoritism.¹ 
 
These unionbusting tactics have gone virtually unpunished and unchecked by the Labor Board, jeopardizing workers' rights to form unions and collectively bargain.  The cases go even further, though, threatening established union membership.  

"Today's workers face an unprecedented imbalance of power, tilted toward the anti-union employer," said former Democratic Whip David Bonior, who now chairs labor policy group American Rights at Work.  "Yet, even in the face of this opposition, workers are undeterred, successfully improving their lives through forming unions."

Highly visible organizing campaigns of hotel workers in Miami, janitors in Texas, and communications workers across the country indicate that workers in America want and need unions.  "If the Labor Board turns its back on workers it will, for all intents and purposes, revoke the right to organize and eventually remove labor unions from the American social landscape," says Bonior.

THE POLITICS OF THE "BUSH BOARD"
RECENT LABOR BOARD DECISIONS SUGGEST DANGEROUS TREND

As a body comprised of Presidential appointees, the Labor Board's actions often reflect the political interests of the Administration.  However, unlike its predecessors, the "Bush Board" decisions do not represent the typical political pendulum swing to the right or left.  Instead, this Labor Board has sought to override the law's intent to protect workers in favor of absolving employers of legal responsibility to respect workers' inalienable freedoms of association and free speech.

According to Cornell University professor James A. Gross, who has written several books about the Labor Board, "They are pressing the outer limits of what could be a reasonable or legitimate interpretation of the balance between employer prerogatives and worker rights.  In my mind, this is fundamentally inconsistent with the purpose of the National Labor Relations Act, which is to encourage the practice and procedures of collective bargaining."²

Additionally, the day-to-day operations of the Labor Board are carried out under a cloak of secrecy.  The Bush Board has frequently taken action behind closed doors without public scrutiny or without giving key stakeholders an opportunity to be heard.  The Labor Board has overturned precedent without holding oral arguments to determine how changing policy would impact workers affected by the decisions.  By contrast, during the Clinton Administration, the Labor Board held hearings before it overturned long-standing precedents.

"At a basic level, the Labor Board has an obligation hold open, considered, and timely review of these matters of great significance to America's workers," says Bonior.

The Bush Board behavior is consistent with other instances in which the Bush Administration dramatically changed law in a manner virtually obscured from public view and debate.  In 2004, The Washington Post published three articles on how the Bush Administration "has used the regulatory process to redirect the course of government."³  Also that year, the Department of Labor reclassified broad swaths of workers, stripping away their ability to receive overtime pay. 

In the closing months of President Bush's first term, a politically-divided Labor Board issued several split-decision rulings that stripped workers of legal protections.⁴

• July 2004: Graduate teaching and research assistants were deemed students and not employees, making them ineligible for NLRA protection.⁵
• September 2004: The Labor Board determined that disabled workers who receive rehabilitative services from employers should not be classified as workers and are, therefore, ineligible to form unions under the protections of federal law.⁶
• November 2004: Employees of temp agencies were barred from organizing with regular employees without both employer and agency permission.⁷
• November 2004: Prohibitions on communications between workers expressing displeasure over working conditions were ruled lawful and were no longer assumed to interfere with employee free speech.⁸
• December 2004: A Labor Board decision weakened the legal protection against employer threats.⁹

More recently, the Labor Board has continued to strip workers' protections in favor of giving employers more latitude to disrupt organizing drives.

• July 2005: The Labor Board allowed employers to ban off-duty fraternizing among co-workers.¹⁰
• August 2005: The Labor Board allowed employers to make unsubstantiated threats about what would happen if a union was formed.¹¹
• May 2006: The Labor Board allowed employers to retaliate against workers who seek community support for their organizing campaigns.¹²

"This rapid erosion of labor law is leaving workers in America more vulnerable than ever," says Bonior.  "Workers who stand up for themselves are now in double jeopardy—attacked by their employer and abandoned by the very agency created to protect them."

If previous decisions are any indication, this year (most likely in advance of mid-term elections) the Republican-controlled Labor Board will probably continue to erode protections for workers who face coercive interference in union organizing campaigns and contract negotiations.

CASES TO WATCH

In light of the Bush Board's history, precedent-setting cases pending at the Labor Board merit close watch and public scrutiny.  Among them are cases that could define millions of professional, technical and skilled employees as supervisors, excluding them from legal protections. Also worth watching are cases that could restrict cooperative agreements and force workers and employers to use a traditionally combative union formation process. 

Redefining How Workers Form Unions:
Voluntary Recognition through Card Check Cases

Pending decisions by the Labor Board in two cases (Dana Corp./Metaldyne Corp.) take aim at voluntary recognition agreements involving card check procedures for union formation.  Workers have used these processes to form unions, legally sanctioned since 1935, in response to mounting evidence that the NLRB representation process (also known as secret ballot) makes it easier for employers to use coercion.  Today, 80 percent of all new unions are organized through voluntary recognition agreements and the card check process. 

Workers and their advocates anticipate that the Labor Board's decisions in these cases may force workers back into the intimidating, protracted NLRB representation process.  The rulings could impose restrictions and remove important, decades-old protections, currently accorded to voluntary recognition agreements. 

• Workers Affected: all workers in America protected under the NLRA
• Status of Case(s):  The cases are awaiting decision by the Labor Board and most observers expect a decision to issue before the end of the year and perhaps as early as August, or sooner. 

Redefining Eligibility for Union Participation:
The Supervisory Status and Airport Screeners Cases

In the Oakwood case (Oakwood Healthcare Inc.), the Labor Board is poised to exclude professional, technical, and skilled employees from the NLRA's protection by designating them supervisors, effectively revoking their right to organize.  At risk are organizing rights for not only nurses but also for employees designated as "lead persons"—positions common in building and industrial trades.  Specifically, this group includes RNs acting as charge nurses in a hospital, charge nurses (RNs and LPNs) in a long-term care facility; and "leadmen" and "load supervisors" in a manufacturing facility.  

Similarly, in the Firstline case (Firstline Transportation Security Inc), the Labor Board could deny collective bargaining rights to private airport security screeners.  Unions have traditionally provided employees whose work affects public safety, protection from retribution for whistle blowing about unsafe or unethical practices.  Revoking union participation from such workers will have a considerable impact on a host of critical industries.

• Workers Affected: millions of professional and technical employees, and private airport screeners
• Status of Case(s):  The cases are awaiting decision by the Labor Board and most observers expect a decision to issue before the end of the year and perhaps as early as August, or sooner. 

CONCLUSION:
WORKERS TAKING A STAND TO PROTECT THE RIGHT TO ORGANIZE

Recent activity by the Labor Board suggests that it is caving to pressure from anti-union political and business interests and intends to further weaken the law through pending decisions.  The Labor Board's workers' rights record with the current Administration is abysmal and it may sink further.  As a result, America's workers would be left with few meaningful mechanisms for realizing their rights granted to them by longstanding federal laws and further protected by international human rights standards. 

In anticipation of the Labor Board's decisions, working people across the country are taking a stand against the further erosion of labor rights.  In New Jersey, for example, over 500 of Health Professionals and Allied Employees' nurses and other health care workers rallied on May 24 to call attention to the broad implications of the Board's decision on "supervisory status" cases.  Starting July 10, organizations including the Industry Coordinating Committee, RNs Working Together, and the AFL-CIO will stage a Week of Action.  Events across the country will include workers rallying at worksites and in regional labor board offices to fight for their right to union participation. 

American Rights at Work maintains that the Labor Board's rulings are inconsistent with our basic democratic values as a nation. Says Bonior, "We're committed to exposing the Labor Board's activity for public scrutiny."

For additional information on the cases, please contact Kimberly Freeman at 202-822-2127 ext. 111 or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

Citations

1. Chirag Mehta and Nik Theodore, Undermining the Right to Organize: Employer Behavior During Union Representation Campaigns, Center for Urban Economic Development, University of Illinois, Dec. 2005.
2. Steven Greenhouse, "Labor Board's Detractors See a Bias Against Workers," The New York Times, 2 Jan. 2005: A12. 
3. Amy Goldstein and Sarah Cohen, "Bush Forces a Shift in Regulatory Thrust: OSHA Made More Business-Friendly," The Washington Post, 15 Aug. 2004: A01; Rick Weiss, "'Data Quality' Law Is Nemesis of Regulation," The Washington Post, 16 Aug. 2004: A01; Joby Warrick, "Appalachia is Paying Price for White House Rule Change," The Washington Post, 17 Aug. 2004: A01.
4. Ross Eisenbrey, Economic Policy Institute, "A Closer Examination of the Department of Labor's Final Overtime Regulations," testimony presented before the Workforce, Empowerment, and Government Programs Subcommittee of the U.S. House Committee on Small Business, 20 May 2004.
5. American Rights at Work, "Weakness of Labor Law Remedies Undermines Workers' Rights," Workers' Rights Watch: Eye on the NLRB, July 2004.
6. American Rights at Work, "Employers Threaten, Coerce, and Bribe Employees to Bust Their Unions, " Workers' Rights Watch: Eye on the NLRB, Sept. 2004.
7. American Rights at Work, "NLRB Turns Back the Clock, Relegates Disabled Workers to Second-Class Status," Workers' Rights Watch: Eye on the NLRB, Nov. 2004. 
8. Ibid.
9. American Rights at Work, "Is Another NLRB Election Really a Solution for these Workers? " Workers' Rights Watch: Eye on the NLRB, Dec.2004. 
10. American Rights at Work, "NLRB Green Lights Ban on Off-Duty Fraternizing Among Co-Workers ," Workers' Rights Watch: Eye on the NLRB, July 2005.
11. American Rights at Work, "Unionbusters Score Big in '05 with NLRB as Coach & Referee , " Workers' Rights Watch: Eye on the NLRB, Jan. 2006.
12. American Rights at Work, "NLRB OKs Retaliation against Workers Who Seek Community Support ," Workers' Rights Watch: Eye on the NLRB, May 2006.