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Republicans warp the labor board.

Over the past four years, Fred Feinstein has worked hard at his job as a federal law-enforcement official. He made his agency more efficient and effective, boosted the spirits of a demoralized staff, set appropriate priorities, and above all made sure that the law was firmly and uniformly enforced. But when his name came up for reappointment, top Republican leaders in the Senate pledged to fight him vigorously and, despite White House backing, he realized he would almost certainly lose. So in March, Feinstein reluctantly withdrew his name.

You might expect Republicans to cheer such an exemplary law-enforcement officer, but Feinstein is the general counsel of the National Labor Relations Board (NLRB), the chief attorney charged with enforcing the nation's labor law. It was precisely because he was so conscientious that conservative Republicans, at the urging of big business lobbyists, were determined to get rid of him.

"The reason Fred Feinstein is not being reappointed is because he did his job," says Carl Frankel, general counsel of the United Steelworkers. "For the first time in many years we had someone who believed in aggressive enforcement of the act. The companies have someone pursuing them, and they're uncomfortable about that."

Especially since winning their majority in Congress, Republicans have waged an unrelenting assault on this small agency. Although the battle is sometimes fought in the lingo of legal arcana, it is really about power: Should workers be able to organize in the workplace in ways that effectively counterbalance the power of their employers?

More than sixty years ago, Congress answered affirmatively by passing the National Labor Relations Act, which explicitly encouraged collective bargaining. By extension, that means it was--and still is, by law at least--public policy to encourage workers to organize into unions.

But American employers never fully accepted unions, and the law almost immediately came under attack. Federal courts began trimming back the new rights Congress had given workers, often by arguing that the common-law rights of property owners took precedence. As early as 1939, Republicans and Dixiecrats in Congress began attacking and red-baiting the new NLRB. In 1947, Congress passed the Taft-Hartley Act, which restrained union rights and expanded management prerogatives but still preserved the public policy commitment to collective bargaining.

Throughout its history, the NLRB has tilted slightly more toward labor under Democratic Administrations and back toward management under Republicans. Then, in the 1980s, Reagan's Board overturned doctrines in a way that "was unprecedented, not only in the speed but also in the nature of the reversals," says James Gross, a historian of the NLRB at Cornell University. "There were even Republican doctrines wiped out," such as the duty of employers to bargain over issues like plant closings, the protection of workers individually asserting their rights, and the power of the Board to order businesses that violated the labor laws to bargain with their unions.

With Clinton's victory, the pendulum should have swung back to labor's advantage. Clinton appointed Feinstein, the highly respected counsel to a House labor committee. He also appointed William B. Gould IV, an experienced labor law scholar at Stanford University, as chairman of the five-member quasi-judicial Board. The Board makes final decisions--except for appeals to federal courts--on matters such as how to conduct union elections and whether unions or employers have committed unfair labor practices.

Employers and conservatives protest as if a revolution has occurred, but unions complain about minimal progress on policy and Congressional interference with efforts to improve enforcement. The NLRB's power continues to shrink. Since Republicans took control of Congress, they have reduced the real budget of the agency by about 10 percent, allowed the number of staff to dwindle further (the NLRB now has less than 2,000 employees, compared to 3,000 in 1980), and attached riders to the agency's budget appropriations that set policy ordinarily determined by the Board.

As a result, there has been a sharp increase in the backlog of cases in the field that need investigation and greater difficulty in gathering information from witnesses.

Yet Feinstein was able to trim the time between workers' petitions to form a union and the representation elections. That's important, since employers frequently conduct vigorous anti-union campaigns. In at least one-fourth of organizing, efforts, management illegally fires pro-union workers. When these tactics succeed in intimidating workers, unions often withdraw rather than face probable defeat, says Cornell University expert on union organizing Kate Bronfenbrenner. Delays hurt organizing, and employers know it.

Gould proposed a new rule that would simply have codified standard Board practice for deciding whether individual shops in businesses with multiple locations were eligible for union elections. The rule would have saved time and money for unions, businesses, and the government, and it would probably have reduced delays in elections. But big businesses, like McDonald's and other fast food franchisers, were apoplectic: They want unions to have to organize the largest possible unit, which makes the job more difficult.

Congress treated Gould's proposal as if it flouted the law. Congressional Republicans attached riders to the budget prohibiting the new rule, eventually forcing the Board (over Gould's objection) to drop it. The truth is, Gould's was similar to a decision the Bush NLRB made on appropriate hospital organizing units. In 1992, the Supreme Court sustained that decision. But to today's House Republicans, even George Bush's labor policies seem liberal.

Businesses were even more outraged over Feinstein's request for more injunctions to stop unfair labor practices. Unions had long complained that the Board failed to use injunctions to halt flagrant management violations that have a chilling effect on organizing. The law requires the NLRB to seek injunctions immediately in cases of union violations but makes it optional for management offenses.

Feinstein won an injunction against Overnite Transportation, a trucking subsidiary of Union Pacific that was illegally fighting a Teamster organizing drive. In response, Union Pacific joined with other anti-union firms, like Caterpillar, in pushing for huge NLRB budget cuts and nearly insuperable obstacles to injunctions against business unfair labor practices.

In his first two years, Feinstein more than doubled the number of requests for injunctions each year, and federal judges sustained those requests at about the same rate as earlier. But during the last two years, he has requested only about sixty per year, down from the peak of 109. Although some union and management lawyers think the Republican attacks cowed him, Feinstein defends his record. "We hope it has created a deterrent," he says. "We hope unlawful conduct is corrected without having to pursue it."

In the eyes of labor leaders, the Board has been slow to make rulings on some critical cases, broken little new ground, and failed to reverse the anti-union tilt of the Reagan-Bush era. "There has not been a single bold departure in a pro-union direction," Rutgers law professor Alan Hyde told a Congressional committee.

Although unionists see Gould as basically sympathetic, several of his decisions--such as interpretations of a Supreme Court ruling that union members may opt out of paying for certain union expenses--have irked organized labor. But Gould has been outspoken on behalf of unions. For example, he attacked California Proposition 226, which would require unions to get prior written approval to use a member's dues for politics, and he advocated a ban on permanent replacement of strikers.

Though some labor strategists think Gould's public pronouncements have inflamed conservative critics of the Board, he thinks silence would not have placated them.

"They got used to having it all their way in the eighties and early nineties," he says. "There was such an unremitting torrent of decisions upholding management interests that I think many conservative and some business interests couldn't accept the idea of a balanced Board."

There are companies that object in principle to the Board, to the law, and to its basic premises--not simply to how the law is administered, acknowledges Daniel Yager, vice president of the Labor Policy Association, one of the main business lobbyists against the NLRB. Yager says he objected to Feinstein for his "overall approach."

"Our biggest concern is that he has allowed the Board to be used as a weapon in union corporate campaigns against employers," he says. "It was already being used but gained much more potency under Fred Feinstein."

Unions file charges and get the NLRB to issue complaint5 simply as a way to pressure companies, he claimed, citing more than 400 complaints against Caterpillar during its six-year war with the United Auto Workers. That struggle recently ended with a contract that was largely a victory for the company. Yet the vast majority of complaints against Caterpillar have been upheld in hearings before administrative law judges, indicating that they reflect serious violations of workers' rights.

Union hopes for the NLRB are limited at best. There are no significant penalties for management labor-law violations, and there is little sympathy in the courts for the basic ideas of labor law. In theory, the NLRB can force businesses that defeat an organizing campaign by grossly violating the law to bargain with the union, even without calling a new election. But since 1994, the Board has issued fewer bargaining orders each year than it did even during the Reagan-Bush era, and many fewer than under previous Democratic Presidents.

Labor law is unusual. It deals with social power and the extension of democracy to supposedly private economic domains. The NLRB is caught in a class-war crossfire, and the attacks over the past few years have been unusually virulent. While it is reasonable to ask that it be fair, the Board is not supposed to be neutral. Its job is to defend workers' rights to organize. It can only work in a political climate--and a legal climate in the courts--that takes those rights seriously. In the meantime, diligent officials like Fred Feinstein are under political attack for doing their jobs. Clinton has promised to appoint someone of Feinstein's caliber to be general counsel of the NLRB, although a conservative assault on his replacement could keep Feinstein on the job for the rest of the year.

"At some modest level, we've made improvements in how the law is enforced," Feinstein says, "but the law is the same exact law it's been for roughly sixty years. While I think administration of the law makes a difference, and there's the potential to make a considerable difference if we were fully funded, the reality remains that the law is what it is. To the extent that there were frustrations in the past with the law, those frustrations continue."

Labor leaders are increasingly realizing that their goals--including more meaningful legal protection for workers--depend less on the NLRB and more on their ability to organize old members, new members, and supporters into a stronger movement for worker rights. Then, perhaps, the NLRB will ratify the rights they were guaranteed sixty years ago.

David Moberg, based in Chicago, writes frequently about labor. He wrote "Power Grab" in the March issue.
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Title Annotation:National Labor Relations Board
Author:Moberg, David
Publication:The Progressive
Date:May 1, 1998
Words:1821
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