A federal license to main: when unions begin knocking heads, the NLRB starts slapping wrists - if that.

UNION VIOLENCE is far more widespread in the U.S. than public opinion realizes. The National Right to Work Committee estimates that almost 6,000 violent incidents have occurred during strikes since 1975. But this is less surprising than it might appear since federal labor relations policy implicitly permits some workers to use violence against other workers. Thanks to the rulings of the National Labor Relations Board, a man's right to sell his labor is often at the mercy of whether other men feel that sale will damage their bargaining positions.

When they do, mayhem can be the result. In 1990, the New York Daily News was dying financially largely because of the huge inefficiencies built into its union contracts. Delivery truck drivers routinely earned $100'000though union restrictions on the number of newspaper bundles on each truck often meant the trucks went out half empty. Michael O'Neill, the former editor of the News, complained: "Even without adding any new automation, the News today has 50 per cent more workers than it needs." Once the News announced plans for job cutbacks, the union struck.

Hundreds of incidents of strike-related violence occurred, including the firebombing of a store selling the News, an arson attack that destroyed 13 tractor trailers in the Bronx, the stabbing of a replacement truck driver, and the destruction of several delivery trucks. The New York Times noted, "In one of the more serious incidents, an employee was beaten by two carloads of strikers who descended upon him with baseball bats as he walked to the subway station near the Brooklyn plant... Executives at Save Mart Electronic and Hillside Bedding, two of the remaining major advertisers at the News, said that most of their stores have been vandalized repeatedly since early January."

There is little distinction between this sort of unionism and mafia violence. And, indeed, the two are sometimes intimately connected. In a 1991 report, the New York State Organized Crime Task Force concluded the problem of labor racketeering in the New York City construction industry is "all the more serious because it is so pervasive, has so many victims, and is the catalyst for the commission of so many other kinds of crimes. It victimizes employers and employees, loots pension and welfare plans, mocks the federally guaranteed right-to-union democracy, stifles economic competition, and subverts the collective-bargaining process." The Task Force noted that honest union reformers may be "laid off, blacklisted, intimidated, beaten, or even killed," and that the NLRB and other federal agencies "offer such victims little support."

How can such things happen? Relations between employers and unions are governed by a byzantine web of federal regulations and rulings by the National Labor Relations Board. The NLRB has sweeping discretion to penalize companies, unions, or individuals for "unfair labor practices." In effect, an "unfair labor practice" is whatever displeases a majority of the five political appointees to the National Labor Relations Board.

The NLRB supervises union-management relations in part to ensure that companies do not coerce unions. NLRB officials have an expansive concept of coercion when it comes to management behavior; companies have been found guilty of "unfair labor practices" for merely criticizing unions or for offering raises to their workers before the workers vote on whether to join a union. The NLRB has even issued cease-and-desist orders to nullify companies' premium pay plans and investigated one company for giving Christmas bonuses to employees without the union's permission.

Unions are held to a different standard. In July 1993, the NLRB ruled that when a Teamsters union local affiliate filed a $20-million class-action lawsuit against an employer three days before workers were to vote on whether to join the union, that was not an unfair labor practice. NLRB Chairman Devaney dissented: "I would find that the Petitioner's filing of a $20-million class-action RICO lawsuit against the Employer on behalf of the employees, without cost to them, announcing the suit to the employees the evening before the election, and holding out the prospect of their recovering $35,000 each, while at the same time 'reminding' them that the Petitioner needed their votes the next day, would have a reasonable tendency to influence the outcome of the election and therefore interfere with the employees' exercise of their free choice."

And when unionized workers intimidate management or their non-union colleagues, the NLRB's sense of coercion--so finely tuned when it comes to cracking down on companies-- is absent. Labor-law expert Steve Antesh observed, "In the Georgia Kraft case, the Board found no violation where union members cursed a nonstriker in his home in the presence of his family, and stated they 'would take care of him' when they returned to the plant. The Board characterized these statements as "ambiguous."

In a 1991 case involving Precision Window Manufacturing, Inc., of St. Louis, the NLRB ordered a company to re-hire and award back pay to an employee who was fired after threatening to kill his supervisor. The fired employee promised to return at the end of the day and kill his boss; indeed, the worker did return at quitting time, and remained outside the plant until police arrived. The NLRB ruled that the employee's "rambling, semicoherent mix of insult and threat" were not so flagrant as to forfeit his right to favored treatment under federal labor law. (A federal appeals court subsequently overturned the decision.)

The NLRB makes the finest distinctions in judging the amount of union violence that can be permitted without penalty--meaning that implicitly some union violence is okay. One 1979 decision said that a striking employee "should not be deprived of reinstatement rights absent of a showing that the conduct was so violent . . . as to render an employee unfit for future service." And in a 1990 case union pickets had attacked trucks owned by the International Tank Service, Inc., with rocks and lead pipes, and assaulted company manager John Evans. The NLRB noted judiciously that "it does not appear that this property damage was extensive" and "Evans was not seriously injured ..." Because of the relative mildness of the violence--"Small Strike in Ohio, Not Many Maimed"--the NLRB Office of General Counsel recommended that the picketing not be declared unlawful, and even that the time allotted to the union to picket for recognition not be shortened.

Perhaps the worst recent instance of NLRB countenance of union violence is its handling of the 1990-93 Greyhound bus strike. After management and the Amalgamated  Council of Greyhound Local Unions had negotiated for four months in 1991, the union called a strike. At midnight on March 1, drivers walked off their jobs. The following day, Greyhound began hiring replacement workers and implemented the terms of its final contract offer to the union.

Strikers began a campaign of violence to bring Greyhound to its knees. On March 11, seven passengers were wounded by shots fired at a Greyhound bus in Jacksonville, Florida. In the early months of the strike, buses carrying passengers were shot at 52 times. Bus ridership fell by two-thirds, and the company was unable to provide buses and drivers for almost half its scheduled runs.

Despite the violence, the NLRB early on took the union's side. In May, NLRB General Counsel Jerry Hunter sought to force the company to provide "immediate and full reinstatement" to the strikers, to fire "if necessary, any and all replacements in order to provide work for such strikers," and to provide the strikers with $143 million in back pay. The NLRB claimed Greyhound had committed an unfair labor practice by implementing its final contract offer without union consent-- even after union members attacked Greyhound buses, stations, and employees.

It wasn't until mid June--three months into the strike--that the NLRB issued a nationwide injunction preventing the strikers from throwing Molotov cocktails, concrete, bricks, and bottles at buses or replacement drivers, and committing other acts of violence and harassment. The union, while denying any responsibility for the violence, agreed to the NLRB cease-anddesist order and signed a June 1990 court order-consent decree ratifying the agreement.

This, however, was an advantage for the union rather than Greyhound. The union did not have to pay a single cent of damages or compensation to Greyhound under the terms of the NLRB agreement. And when the violent attacks on buses and striker-replacements persisted throughout the summer, the NLRB refused to enforce the terms of the consent decree, according to Rosemary Collier, counsel for Greyhound and former NLRB General Counsel. Yet, later, in the agency trial, NLRB lawyers argued that striker violence was irrelevant to any settlement because the violence had been "remedied" by the consent decree.

Three months after the strike began, Greyhound filed for bankruptcy. Greyhound chief executive officer Fred Currey said it was the violence that did it. "I've dealt with supply-demand risks all my life," he said, "but I've never lost money as a result of criminal activity, and I deeply resent it. It's been open warfare."

In July 1990 the NLRB General Counsel's office ruled that the union had violated a provision of the National Labor Relations Act that prohibits unions from undertaking campaigns of violence while engaging in collective bargaining, and recommended that charges against it should be dropped. Despite scores of violent incidents, the NLRB rationalized that "although the Union's conduct in the instant case was substantial and widespread, this case does not involve a situation where the Union brought its misconduct directly into the negotiations, by engaging in violence, threats or other restraint and coercion aimed directly at employer bargaining representatives" (emphasis added). Since the strikers only shot Greyhound buses and not the company's CEO, the strikers' crimes were, it seems, irrelevant to federal labor law.

Greyhound management had terminated negotiations with the union after the first wave of striker violence; the NLRB ruled, "Concededly, the Union's misconduct did lead to a suspension of negotiations. However, this suspension resulted from the Employer's independent decision to terminate bargaining in response to the Union's misconduct." The NLRB's definition of "bargaining in good faith" apparently includes an unlimited obligation for a company to bargain with representatives of a group that shoots and attacks its customers and employees in an attempt to destroy it.

So the NLRB brought a case against Greyhound before one of its own administrative law judges. Its complaint alleged Greyhound bargained unfairly with the drivers and forced the strike in an attempt to break the union. The NLRB claimed that no bargaining impasse had existed at the time the union went on strike, and thus that management had no right to unilaterally implement its contract offer after the union members left their jobs.

(At about the same time the issue was also being tried in a more objective court, before U.S. Bankruptcy Judge Richard Schmidt as part of the determination of Greyhound's liabilities in bankruptcy proceedings. Judge Schmidt concluded that there was not "any serious doubt" that an impasse had existed. Schmidt reduced the NLRB's claim against Greyhound for back wages and damages to workers from $143 million to $31.5 million--as a bankruptcy judge, he could not totally erase the claims.)

In an indication of how far the NLRB would go to accommodate the Greyhound strikers, NLRB lawyers argued that Greyhound had committed an illegal "unfair labor practice" by firing two strikers convicted and sentenced to jail for shooting at a bus carrying passengers. The NLRB argued that the workers had been engaged in union activities during the strike, and thus that their activities were protected under federal labor law and that Greyhound owed them back pay, according to Greyhound counsel Rosemary Collier.

Under pressure from the Clinton Administration and the NLRB, Greyhound settled with the striking union in April 1993 before the drawn-out administrative trial was completed, agreeing to provide some $22 million in back pay and to rehire many of the strikers who had been engaged in misconduct against the company. The union was not required to make any compensation to the shooting victims or others injured during the course of the strike.

The double standard is typical. As a University of Pennsylvania-Wharton School of Business study noted in 1983, "The board has consistently refused to order unions to compensate employees who have incurred hospital or medical expenses as a result of union violence. It has likewise refused to order monetary awards covering union damage to company property and equipment."

The NLRB's policy will likely become more biased during the Clinton Administration. (President Bush showed little interest in the rights of non-union workers until April 1992, when he was knee-deep in a floundering re-election campaign--hence, the reckless work of his NLRB appointee's.) Clinton is an advocate of a federal prohibition on businesses hiring replacements for strikers. And he nominated as chairman of the NLRB, William Gould, a Stanford Law professor and former United Auto Workers counsel who has complained that "the concept of economic democracy has lagged considerably behind political democracy" in the U.S. The combination of a ban on replacement workers and tolerance of striker violence could give unions a stranglehold over management in most labor confrontations.

But we should be moving in the opposite direction. When Americans are increasingly revolted by violent crime, Congress should give the NLRB a cease-and-desist order on its tacit endorsement of violence as a union bargaining tactic.

Mr. Bovard is the author, most recently, of Lost Rights: The Destruction of American Liberty, forthcoming in April from St. Martin's Press.