01/05/2007 07:24 pm ET Updated May 25, 2011

Memo to Democrats: Reverse NLRB's Decisions on Workers' Rights

By Dmitri Iglitzin and Steven Hill

With the Democratic Party regaining control of Congress for the first time
since 1994, Democratic leaders should look to undo the effects the Bush
administration has had on American workers. But that won't be easy, because
one institution that remains solidly in Republican and anti-worker hands is
the National Labor Relations Board, the country's chief arbiter of labor

Although nominally a quasi-judicial entity appointed by the president and
empowered to adjudicate labor disputes, the NLRB actually sets the rules
that govern those disputes and thereby exerts an enormous influence over who
prevails. In case after case over the last several years, the
Republican-dominated board has taken positions that have hurt American

In one recent case, the Oakwood Healthcare decision, the board found (by its
usual 3 to 2 Republican majority) that a group of Michigan nurses are
excluded from the protection of the nation's most important labor laws on
the spurious grounds that they are "supervisors," not employees. In one
stroke, these workers--and potentially tens of thousands of others--lost the
right to be in a union and to advocate collectively for workplace

The same September day as the Oakwood decision, the board also cut back on
the right of employees to wear union buttons at work. That case arose out of
a dispute in San Diego at the W Hotel, which, according to its owner, the
Starwood Hotels & Resorts chain, seeks to give its guests a "wonderland"
hotel experience where they get "whatever they want, whenever they want it."
For its employees, however--mostly low-paid Latino laborers--the hotel is no
wonderland. Some wore buttons bearing four words--"Justice Now! Justicia
Ahora!"--and the name of their union. The W demanded workers take them off.

The NLRB sided with the W because the buttons were "controversial." W guests
now need not worry about having their wonderland experience marred by seeing
employees exercise their First Amendment rights. That rule is now precedent
and can be applied to workers in labor disputes across the country.

But what happened in San Diego is nothing compared to what happened to
workers in Jacksonville, Texas, just the day before. Back in 2000, the
employees of a small meat-cutting department at a Jacksonville Wal-Mart
voted to unionize. A week later, Wal-Mart announced that it was phasing out
in-store meat-cutting departments nationwide. It took six years for the NLRB
to conclude that Wal-Mart had unlawfully retaliated against workers trying
to unionize. Even then, the board disregarded the ruling of its own
administrative law judge and decided that, even though Wal-Mart violated the
law, it can't be ordered to restore the unionized meat department. Add up
the score: Wal-Mart--3,245 non-union stores; union-represented workers--zero.

These are just the latest in what is now a long line of literally dozens of
anti-worker NLRB decisions in recent years. The cumulative effect has been
devastating, particularly in a global economy where American corporations
are cutting back health care and retirement pensions for employees, and
where workers rights are being eroded toward the lowest common denominator
established by labor conditions in places like China and India.

A recent nationwide study by the University of Illinois at Chicago's Center
for Urban Economic Development found that:

* 30 percent of employers fire pro-union workers

* 49 percent of employers threaten to close a worksite when workers try to

* 82 percent of employers hire union-busting consultants to fight organizing

* 91 percent of employers force employees to attend anti-union meetings
one-on-one with supervisors

"Our research clearly shows that firings, bribes and threats are pervasive,"
said Nik Theodore, director of the Center for Urban Economic Development.
"These actions greatly impede workers' ability to form unions."

In 1935, when Congress enacted the National Labor Relations Act, it held the
philosophy that protecting the right to organize helped to restore "equality
of bargaining power between employers and employees" and removed "sources of
industrial strife." What's more, enabling workers to unionize was seen as a
practical way to help keep the economy humming along, since higher wages
would increase the purchasing power of workers as consumers. In other words,
Congress saw workers' rights as good for the overall economy. Today,
however, the Republican-dominated Congress and anti-worker NLRB have been
motivated by a much different philosophy.

The question now shifts to where will the new Democratic majority come down
on this philosophical divide? In an age of globalized economies, unions are
one vehicle for workers to try and receive their fair share of the pie.
President Bush can point all he wants to low unemployment and a resurgent
stock market as signs of a strong economy, but the fact is most Americans
don't feel so bullish. Median incomes are flat, health care costs are
soaring, pensions are being de-funded and corporate employers are
threatening to shred the social contract with their employees that has
prevailed for 60 years. American workers have lost a lot of ground over the
last six years, with stagnant wages and a fraying social net, even as
corporations have enjoyed record profits.

The Democratic majority in Congress could begin rectifying the situation by
passing the Employee Free Choice Act, which already has 215 co-sponsors in
the House and 43 in the Senate, even before the Democrats assume the helm.
That act has a number of provisions which would make it easier for workers
to organize and less difficult for unions to obtain good contracts for its
members. Notably, the Employee Free Choice Act would make the following
changes to federal labor law:

* Workers would be able to unionize by a simple majority of worker
Currently, union elections and the organizing campaigns preceding them get
derailed for years by unlawful and obstructive employer tactics. But the
Employee Free Choice Act provides for "card check"--that a union will be
certified as the exclusive bargaining representative for employees if a
majority of employees in a particular workplace sign authorization cards.

* First-contract mediation and arbitration--

Currently, hostile employers respond to a successful unionization drive
among their workers by simply refusing to enter into negotiations or to sign
a collective bargaining agreement with the union. But the Employee Free
Choice Act provides that if an employer and a union are engaged in
bargaining for their first contract and are unable to reach agreement within
90 days, either party may refer the dispute to the Federal Mediation and
Conciliation Service for mediation. If the FMCS has been unable to bring the
parties to agreement after 30 days of mediation, the dispute will be
referred to arbitration and the results of the arbitration shall be binding
on the parties for two years.

* Stronger penalties for retaliating against employees attempting to
unionize --

The Employee Free Choice Act provides that the NLRB must seek a federal
court injunction against an employer whenever there is reasonable cause to
believe the employer has retaliated against or threatened employees during
an organizing or first-contract drive. It also increases penalties,
including the amount an employer must pay to triple back pay when an
employee is retaliated against, and civil fines of up to $20,000 per
violation against employers found to have violated employees' rights during
an organizing campaign or first-contract drive.

Amidst the expectations unleashed by the Democrats' retaking of Congress, it
should not be forgotten that American workers have given a lot in recent
years but have not received their fair share. It's past time to level the
playing field. Passage of the Employee Free Choice Act would go a long way
towards equalizing bargaining power between workers and employers.

[Dmitri Iglitzin is a labor law attorney in Seattle and a lecturer at the
University of Washington Law School. Steven Hill is political reform
director at the New America Foundation and author of 10 Steps to Repair
American Democracy ( )