By Sholnn Freeman
Washington Post Staff Writer
Friday, December 14, 2007
Democrats escalated attacks on the National Labor Relations Board at a congressional hearing yesterday, accusing the panel's Republican majority of turning the nation's labor laws "inside out" by making it harder for workers to form unions.
In an unusual public airing of ideological differences, NLRB Chairman Robert J. Battista, a Republican appointed by President Bush, sparred with Democrats, including Sen. Edward M. Kennedy of Massachusetts and fellow board member Wilma B. Liebman, over interpretation of the nation's New Deal-era labor laws.
Battista was challenged to defend a string of decisions that have favored management. The rulings cover technical procedures that unions use to organize, as well as remedies, such as back pay, that the board can order when companies illegally try to stop union campaigns.
"Our critics' prognostications that the NLRB system is broken and has become a tool of corporate interest are simply false," Battista said in prepared remarks. "Unions are winning a majority of representation elections." Under questioning, Battista said the board was focusing on what employees want, not on the demands of unions or companies.
Labor unions have become increasingly frustrated with the NLRB's rulings since Bush took office. They say the board, made up of three Republicans and two Democrats, has removed large categories of workers from coverage by the National Labor Relations Act, including nurses, teaching assistants at private colleges and temporary employment agency employees. They say the board has made it more difficult for workers to win back pay or other remedies when employers unlawfully try to block organizing drives.
The tension is threatening to paralyze the agency, which could have as many as three vacancies on its board by year-end. In a memo last month to their congressional allies, labor officials urged Democrats to "stanch the bleeding" at the agency by blocking board appointments. Last month, union activists marched in front of the agency's headquarters, some chanting, "Shut it down!"
The fight could be a precursor of larger battles over reform of U.S. labor laws. "Unions want to build momentum for labor law reform," Battista said outside the hearing room after his testimony. "This might be part and parcel of that."
The National Labor Relations Act, passed in 1935, gives the NLRB exclusive authority to bring labor cases, making the agency highly influential in setting the nation's labor policy. Its members are appointed by the president, confirmed by the Senate and hold five-year terms.
Some academic analysts say the board has become increasingly politicized in recent decades, starting with the anti-union appointments by President Ronald Reagan and continuing under President Bill Clinton, who appointed union lawyers to the board. But the latest decisions have a drawn a firestorm of criticism.
"The act is supposed to protect the right to organize and engage in collective bargaining," said James J. Brudney, a law professor at Ohio State University. "But if the agency charged with supervising and enforcing the act is perceived as part of the problem and not the solution, then that's a dangerous development for the future of the agency."
Democrats and labor leaders are angry at a set of 61 decisions released by the board in September. A major disappointment was a ruling involving Dana Corp., in which the board required the auto-parts maker to post information on how workers could begin the process of decertifying a newly organized union, even though the company didn't oppose the organizing drive.
Liebman contended that the Dana decision broke precedent that dated to 1960 and allowed a "minority to undo what a majority has expressed a desire to do." She accused Battista and the board majority of "narrowly casting existing precedent" or ignoring precedents "if they stand in the way of a desired result."
She and Battista also battled over basic interpretation of labor relations law. Battista said revisions to the laws in 1947 require the board to take a more neutral stance in organizing controversies. The view sharply contrasts with the view of Liebman, union lawyers and prevailing academic opinion.
However, John N. Raudabaugh, a former NLRB member and chairman of the U.S. labor-relations practice at the law firm Baker & McKenzie, said that "if you study the various labor boards, you will find there is an ebb and flow in the way that statutes apply to fact patterns, and from time to time precedent is reversed. What you'll also find in the last 15 years, the Clinton board reversed case precedent some 400 to 500 percent more than this Bush board has. Look at the history of the Clinton board and then the compare the Bush board and I think the unions would need to sit down and shut up."
Brudney said much of the blame for the breakdown of the agency lies with Congress for letting decades pass without revising the labor relations act.
"Part of what makes the agency's job challenging is that Congress hasn't given them any new direction since 1959 on these issues," Brudney said. "I can't think of another federal regulatory statute that affects millions and millions of people that hasn't been touched for this long."