solidarity across unions

Wednesday, April 27, 2005

NLRB: helper or nemesis? The panels critics say its recent rulings have favored management too often. By Jane M. Von Bergen Philadelphia Inquirer April 27, 2005 (Registration required)

Graduate assistants at Yale and Columbia Universities staged a weeklong strike last week seeking the right to form unions.

Graduate students there and at other universities, including the University of Pennsylvania, look to accomplish in the public arena what they could not through the National Labor Relations Board: be recognized as employees entitled to a union.

With membership falling, union leaders want to encourage growth. Even as critics say the labor movement is outmoded, union leaders blame a political environment that they say is hostile to workers and unions.

Chief among the obstacles, they say, is the NLRB, an independent federal agency that resolves union issues. The president appoints all five members, three from his party and two from the opposition.

The board's critics say its rulings on union representation, strikes and labor practices have swung too far in favor of management and well beyond the shifts expected with changes in political power.

"We are seeing much more than the pendulum effect correcting the excesses of a Clinton board," said Jonathan Hiatt, general counsel of the AFL-CIO, a federation of labor unions representing 13 million workers.

Not really, said Robert J. Battista, the NLRB's chairman. Battista, who was appointed by President Bush, is a Republican who formerly practiced employment law on the management side in Detroit.

"If you are asking whether the board has gotten a political bias or an ideological bias, I'd say no," he said.

Most decisions favor workers, and those that do not, he said, are "reestablishing a long-standing precedent that we thought was improvidently overturned" during the Clinton era.

Because the National Labor Relations Act was created to promote and protect collective bargaining, NLRB cases tend to favor employees, Hiatt agreed. But 40 recent precedent-setting cases reveal a bias, he said.

"Why is it that in every one of these cases, they are coming out on the management side?" Hiatt asked. "Forget the unions. It's an anti-worker position."

Charles Craven, a labor law professor at George Washington University, said the decisions were typical of NLRB shifts that occur with changes in power. "It's more analogous to a pendulum in a grandfather clock," Craven said.

Members of the NLRB serve five years. Battista and Peter C. Schaumber are Republicans. Wilma B. Liebman is a Democrat. As is the case now, there are often vacancies. The terms of Republican Ronald E. Meisburg and Democrat Dennis P. Walsh expired in December. Typically, the most important cases are held until there is a full board.

Among the most important to business and labor are reviews of cases involving Dana Corp. and Metaldyne Corp., both of which challenge labor's most successful membership-building technique: persuading management to recognize a union when a majority of workers sign union cards.

The card method can replace the traditional NLRB secret-ballot election process, which unions say allows management to delay the process long enough to discourage organizing.

To promote harmonious labor relations, partially unionized companies sometimes agree to remain neutral for card campaigns at their nonunionized workplaces.

That is what happened at the 335-employee Metaldyne auto-parts-manufacturing plant in St. Marys, in Western Pennsylvania's Elk County. On Dec. 1, 2003, the company recognized the United Auto Workers union after workers signed cards.

Twenty-two days later, the National Right to Work Foundation helped some workers, who said they were pressured into signing cards, file an NLRB petition to oust the union.

Ordinarily, such a petition would be denied.

Case law allows a new collective-bargaining relationship to gel for a year without interference.

In both the Dana and Metaldyne cases, the NLRB will decide whether a request to oust the union can be filed more quickly in a card-check situation.

"Battista has been under a lot of pressure to do something about it because it is the one area where unions have been successful," Hiatt said.

The U.S. Chamber of Commerce is filing an amicus brief in the cases, saying that requests to oust the union should be allowed more quickly.

"In recent years, there has been a wholesale attempt to eliminate the secret-ballot election," said Charles I. Cohen, a partner in the law firm of Morgan Lewis & Bockius L.L.P., who is filing the brief for the chamber.

Cohen, a Republican, was a Clinton NLRB appointee and is now chairman of the U.S. Chamber of Commerce subcommittee on the National Labor Relations Act.

Neutrality in the card-check process "is, in reality, a gag order" imposed on the employer, said Cohen, who thinks the current board is righting Clinton pendulum swings.

One oft-cited "pendulum" case involves university graduate assistants who teach and conduct research.

Last year, the NLRB's Republican majority ruled that Brown University graduate assistants were students, not employees, and could not unionize. The Democrats dissented.

The Brown ruling overturned a 2000 decision written by two Democrats and a Republican that New York University graduate assistants were employees entitled to a union.

The NYU decision reversed a 1974 case heard during a GOP era, saying that case no longer reflected the work experience of graduate students.

Graduate assistants at many public colleges, including Temple University, are in unions.

Graduate assistants at Penn began a union drive in 2001, after the NYU case.

"Having a union changes the power dynamics at a school," said Christina "Tina" Collins, a leader of Get-Up, the Penn graduate assistants' group affiliated with the American Federation of Teachers. Her group led a protest at the University of Pennsylvania on April 19.

In 2002, the NLRB's regional panel allowed Penn's graduate assistants to hold an election. The university appealed. The election took place in 2003, but the NLRB sealed the results. The Brown case, decided in July, upholds Penn's position, and weakens that of the assistants.

Now, Collins said, her group wants students, their parents, politicians, funders and professors to persuade the university to change its mind.

"The NLRB did not make it illegal for us to have a union," Collins said. "It left the question of recognition in the hands of the universities."

Union recognition is not likely, university spokeswoman Lori Doyle said. "It's a philosophical issue. They didn't come to Penn to take a job, they came here to get an education."

Doyle said the university had advisory groups to deal with graduate issues. "We don't need an outside union to represent graduate students," she said.

Contact staff writer Jane M. Von Bergen at 215-854-2769 or

NLRB Members*

Robert J. Battista

Party Republican

Appointed December 2002 (Bush)

Background Management lawyer in Detroit; was chairman of the Labor and Employment Law Section of the Michigan Bar Association

Wilma B. Liebman

Party Democrat

Appointed November 1997 (Clinton).

Reappointed (Bush)

Background Counsel to the Teamsters and the Bricklayers and Allied Craftsmen; was executive with the Federal Mediation & Conciliation Service.

Peter C. Schaumber

Party Republican

Appointed December 2002 (Bush)

Background Labor arbitrator; served as government attorney in the District of Columbia, as an assistant U.S. attorney, and as a trial lawyer in U.S. Comptroller's Office. In private practice in Washington, he specialized in litigation.

*Two seats, one from each party, are vacant.

SOURCE: National Labor Relations Board

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The Coalition of Graduate Employee Unions is a loose-knit coalition of labor unions in the USA and Canada that represents graduate students employed as teachers, researchers, and administrative staff.