Over the past 20 years, the National Labor Relations Board has changed its view of the American worker. As a result, it may be harder for an employee to know what's going on when the agency holds an election to see if a union should represent a company's work force.
In the late 1960s, the labor board looked at workers as essentially naive, easily misled by claims from both sides about what the dire results would be if the employee voted the "wrong" way. The NLRB thus tried to make sure that representation elections were as close to ideally perfect as possible. They were supposed to be like civics textbook descriptions of elections, without the defects that may crop up in the real political process.
Today, a recent decision of the U.S. Court of Appeals in Chicago notes, the board is more likely to figure that workers have the wherewithal to fend for themselves. Research suggests that threats and propaganda just don't influence workers the way they used to.
Those changes led the Chicago judges, over the objection of corporate management, to approve a representation election in which the ballot was available only in English, even though a quarter of the employees involved spoke and wrote only Spanish.
In 1969, presented with an almost identical situation, the U.S. Court of Appeals in New Orleans threw out the election results, saying that Spanish-speaking workers had a right to vote in Spanish.
That ruling was based on a belief that the NLRB, in approving the English-only election, was not following its own standards. The Chicago judges in NLRB v. Precise Castings refused to follow the 1969 precedent because of the change in NLRB attitudes. As Judge Frank Esterbrook explained Oct. 17, the board can set whatever procedures it wants as long as it has legitimate reasons.
He noted that if either the employer or the union requests it, the board will post an election notice in any language, explaining how to vote and containing a translated ballot. The judges reasoned that any worker who cares enough to learn about the issues and decide which side to support can find out where to mark the ballot, even if he cannot read the words.
In other cases, courts ruled that:
Congress, without realizing it, repealed part of the antitrust laws when it passed laws regulating corporate takeover bids. The U.S. Court of Appeals in Manhattan found nothing wrong with rival bidders striking a deal under which one would back off from a tender offer in return for other financial benefits. The judges ruled that the usual Sherman Antitrust Act curbs on such anti-competitive agreements were overridden by the Williams Act, in which the Securities and Exchange Commission got the exclusive right to define what's unlawfully manipulative -- and what's not -- in tender offers and similar takeovers.
(Finnegan v. Campeau, Oct. 4) States can bring criminal prosecutions based on hazardous workplace conditions. In general, the federal government, in the Occupational Safety and Health Act, took over the job of regulating on-the-job safety. But the New York Court of Appeals decided that OSHA does not freeze the states out of bringing criminal charges against companies that in effect assault their workers through dangerous working conditions. The key: The state prosecutions must be based on general criminal laws, applicable to everyone, not specific occupational safety regulations.
The ruling echoes similar conclusions reached by the highest courts of Michigan and Illinois.
(New York v. Pymm, Oct. 16) The Red Cross doesn't have to pay local gambling taxes. The charity paid the tax the city of Spokane said was due on fund-raising bingo games Red Cross ran, but then it filed for a refund. The city must give the money back, the U.S. Court of Appeals in San Francisco decided, because the Red Cross, although privately funded, is closely enough tied to the United States to be covered by the ban on state and local governments' taxing the federal government.
(U.S. v. Spokane, Oct. 31) A state legislature cannot use a statute of limitations to take away from an injured person the right to sue.Kentucky lawmakers tried to protect local doctors and hospitals by decreeing that medical malpractice suits had to be filed within five years of the alleged negligent act. But the Kentucky Supreme Court -- looking at the problem of a man who in 1985 discovered that 13 years earlier an orthopedic screw had been left in his leg -- called the provision unconstitutional.
The state constitution promises that the courts will be open to "every person for an injury done him." The justices found the legislature has no power to impose time limits that put Kentuckians in the impossible situation of having to exercise that right before they know of the injury.
(McCollum v. Sisters of Charity, Oct. 18)
Daniel B. Moskowitz is a Washington editor with Business Week newsletters.