What's Next for the National Labor Relations Board?
By ROBERT BRUNO, JOHN LOGAN, AND CATHY KWIATKOWSKI

In conjunction with the 2005 LERA Annual Meeting in Philadelphia, Perspectives on Work convened a roundtable discussion on the "Future of the National Labor Relations Board" (NLRB). A crowd of participants heard insightful comments from invited speakers Fred Feinstein (NLRB general counsel in the period 1994-1999), Mary Beth Maxwell (American Rights at Work) and Jeremy Sherman (Seyfarth Shaw). Their presentations sparked a lively discussion on a host of NLRB issues.

	Mary Beth Maxwell comments on the NLRB at the 2005 LERA Annual Meeting in Philadelphia, while co-moderator John Logan and others listen. Photo courtesy of Cathy Kwiatkowski.

Presentations
Feinstein began by spelling out a number of administrative issues of interest to the Board (including processing cases and charges, elections, and case-prioritization guidelines), and then attempted to forecast trends based on recent NLRB decisions. He reviewed the most public and controversial decisions of the Board under President George W. Bush (H.S. Care LLC, Brown University, Brevard Achievement Center, IBM Corporation, and Crown Bolt) and offered strong concerns about what he saw as the Board's attempt to limit labor-law coverage and to restrict the meaning of "protected activity." He also expressed the opinion that the Board had, in effect, backed away from enforcement issues.

Feinstein criticized rulings of the Bush Board for failing to address the needs of a changing workforce and for its willingness to revisit established doctrines and reverse well-settled precedents. He acknowledged that the NLRB overturned longstanding decisions during the term of President Bill Clinton, but argued that the Clinton Board had done so in response to changes in workplace conditions and the nature of work; the Clinton Board, in contrast to the Bush Board, made determinations that genuinely reflected reality. Feinstein maintained that the present Board initiated a qualitatively different and unprecedented period of partisan political decision-making, which challenged the Board's traditional commitment to objectivity and undermined the existence of standards that had governed it in the past. He also expressed a fear that unions are now finding the NLRB to be irrelevant.1

Management attorney Sherman offered a different perspective on the question of political partisanship by highlighting three cases:

• H.S. Care LLC, which overturned Sturgis,
• IBM Corporation, which overturned Epilepsy Foundation, and
• Brown University, which overturned New York University.

He demonstrated that recent labor board reversals were actually reinstatements of prior pre-Clinton precedents. Sherman suggested that all of the most controversial issues before the Board were bound to go back and forth depending on the presiding administration, and that the first Bush term rulings were consistent with past decision-making patterns. He said that these issues have troubled the Board "for many, many years without resolution in powerful precedence."

Sherman listed a series of issues he expects to see before the Board. They include:

• Card-check recognition;
• Use of lockouts and partial lockouts;
• Joint employer status;
• Weingarten Rights for non-union employees;
• Supervisory status of employees;
• Withdrawal of union recognition on good faith;
• The question of whether voluntary recognition precludes employees from making informed decisions;
• The question of whether use of union photography during an election was protected activity;
• Use of e-mail systems at work; and
• Rules governing solicitation and distribution of union material at work.2

Maxwell addressed what she feels is the NLRB's indifference to the workplace conditions experienced by employees who want to join a union. She emphasized that many recent decisions simply ignore the realities of the current workforce. In her view, the Bush Board has failed workers. Maxwell stressed that workers confront serious issues and challenges on the job, and that employees are often devastated because of workplace mistreatment. She disagreed with Sherman that the reversal of several Board precedents amount to just a customary shifting of political power.

As evidence of how the NLRB fails workers, Maxwell recounted the story of a hospital bargaining unit that recently went through the recognition process. In August of 1999, nine out of 12 employees signed a recognition card. Within hours, management called a meeting with the 12 employees, and one was fired. Within a few months, an election was held, and employees voted the union down 7-4. The NLRB reviewed the case, found multiple violations, and immediately ordered a bargaining session. In October of 2004, the decision to order a bargaining session was overturned, and the NLRB granted the unit the opportunity to have another election.3

	NLRB member Wilma Liebman offers a comment during the January 2005 roundtable sponsored by Perspectives on Work; to her right is Jeremy Sherman. Photo courtesy of Cathy Kwiatkowski.

Discussion
Much of the discussion following the presentations focused on union recognition. The NLRB's willingness to reconsider a one-year time bar on decertification petitions following union card-check recognition (in the Dana and Metaldyne Corporation cases) became the subject of a spirited debate among the speakers and participants.

Sherman noted that a union would traditionally organize employees, file a petition, hold an election, win recognition, and begin the bargaining process. He feels that in some instances, however, the process had flipped from the "bottom-up" to the "top-down." The union now approaches the employer directly, "like a local mobster coming to your place," and strong-arms management into voluntary recognition to eliminate the hassle of an organizing drive. He said, "There is no good reason employers would enter a neutrality agreement unless the union had a boot on their throat." Sherman added that neutrality agreements are not always limited to voluntary recognition and sometimes set substantive contract terms agreed to by the union and the employer.

Feinstein responded that there were significant reasons for employers to consider a neutrality agreement, not only because it might improve their standing with the union or avoid unnecessary conflict but also because they could see it as the right thing to do for their employees. He pointed out that even under neutrality agreements, union still are required to organize employees. He felt that the problems organizing poses for all parties would be less substantial with neutrality agreements than when conducted by the traditional process.

Jill Kriesky, who along with Adrienne Eaton has conducted research on card-check recognition and neutrality agreements, objected to the idea that an employer is hamstrung by a union card-check campaign. Kriesky noted that card-check elections are held to a higher standard than traditional elections and that employers often use neutrality agreements to negotiate the terms of an organizing campaign.4

Others contributing to the discussion included Andy Levin of the AFL-CIO and Jim Small of the NLRB in Southern California. Levin challenged the notion that rulings of the Bush Board were simply restoring the status quo that existed prior to the Clinton years. He added that it was inappropriate to use the "mobster" reference in describing union behavior. However, Small stated that he often receives calls from employees objecting to the voluntary recognition process because these workers feel they were denied a choice regarding whether a union should be formed.

Taken as a whole, the Philadelphia roundtable dramatically underscored the changing nature of the workplace and the dynamic and highly charged nature of America's contemporary political climate.

Notes
1. President Clinton first appointed Fred Feinstein as NLRB general counsel for a four-year term commencing on March 3, 1994. Upon expiration of that term, Feinstein was appointed acting general counsel, and on October 22, 1998, he received a recess appointment to serve as general counsel. Previously, he was staff director and chief counsel to the Subcommittee on Labor-Management Relations of the U.S. House of Representatives. Feinstein is a visiting professor and senior fellow in the Office of Executive Programs at the University of Maryland School of Public Policy. He conducts research and writes on labor issues, and develops executive education programs on such subjects as the challenge of adapting labor policy to new work environments. During his tenure as general counsel, Feinstein was recognized for efforts to improve the administration of the National Labor Relations Act, including establishment of a system for case prioritization.
2. Mary Beth Maxwell has served as executive director of American Rights at Work since the organization launched in 2003. She brings more than 15 years of political strategy, field organizing and management experience to her current position. Maxwell served previously as national field director of Jobs with Justice, which she helped grow into a national grassroots network of 43 local coalitions and organizing committees supporting workers' rights. She sits on the board of directors of American Families United.
3. Jeremy Sherman, a partner at Seyfarth Shaw LLP, has represented a wide range of employers since 1976. His practice is national in scope. He has been engaged as a counselor, advocate, and negotiator in some of the nation's most widely reported labor disputes. Sherman chairs the labor-relations steering committee of his firm's labor and employment practice group. He has served as lead counsel in numerous cases before the National Labor Relations Board, the United States District Courts, and the United States Courts of Appeal; he has represented management in over 100 labor arbitrations. A contributing editor to the monthly Labor and Employment Letter, a joint venture between the Newspaper Association of America and Seyfarth Shaw, Sherman has published articles in legal journals and is a frequent speaker on labor and employment law topics. He is a fellow of the College of Labor and Employment Lawyers and a member of the Leading Lawyers Network.
4. See Adrienne E. Eaton and Jill Kriesky, "No More Stacked Deck: Evaluating the Case Against Card-Check Union Recognition," Perspectives on Work (Summer 2003) Vol. 7, No. 1, 19-21.

ROBERT BRUNO is associate professor of labor and industrial relations at the University of Illinois and co-chair of LERA's Labor Unions/Studies Interest Section.

JOHN LOGAN is lecturer in industrial relations at the London School of Economics and Political Science and convener of LERA's International Interest Section.

CATHY KWIATKOWSKI is program coordinator of the Chicago Labor Education Program at the University of Illinois and vice president of membership for the Chicago IRRA (local LERA chapter).

Labor and Employment Relations Association
Tel: 217-333-0072 | Fax: 217-265-5130 | LERAoffice@uiuc.edu | www.lera.uiuc.edu