Rights, Not Interests: Resolving Value Clashes Under the National Labor Relations Act by James A. Gross

Author:James A. Gross [Gross, James A.]
Language: eng
Format: epub
Tags: Labor & Industrial Relations, Labor & Employment, Political Science, Law, Human Rights
ISBN: 9781501714269
Google: qM46DwAAQBAJ
Publisher: Cornell University Press
Published: 2017-11-15T13:30:28+00:00

A Board Divided

In this transition period, John Truesdale ended his forty-five-year career with the NLRB by resigning as a Board member as he had promised he would do once his replacement had been selected;17 the NLRB published a notice in the Federal Register indicating that the deputy general counsel was authorized to perform the duties of the general counsel when that position is vacant;18 and the Board delegated to the general counsel full authority on all court litigation matters that would otherwise require Board authorization during any time in which the Board had fewer than three members.19 When Walsh’s recess appointment expired in December 2001, it left only then-chairman Hurtgen and Member Liebman on the Board.20 It would not be the last time that the Board had only two members.

The Battista Board got off to a slow start. In October 2003 Battista claimed that vacancies on the Board left important cases in limbo. Among the most challenging issues facing the Board, Battista listed employer restrictions on employee use of e-mail for union solicitation; the employee status of graduate students; whether the right to representation in the disciplinary process should apply in nonunion settings; whether temporary employees provided by an agency should be included in an established bargaining unit; the legality of union videotaping of employees; what evidence an employer could rely on to show that a union no longer had the support of a majority of workers;21 the test for determining supervisory or employee status; and what Battista called “one of the more contentious issues of our time,” labor-management neutrality agreements during organizing campaigns and use of authorization card checks instead of representation elections to determine union recognition.22

The Wall Street Journal berated the Battista Board for leaving in place, almost five years into the Bush presidency, Clinton-majority precedents that “diminished employer rights and free speech, increased union coercive privileges, entrenched incumbent unions, and sharply undercut the rights of employees who disagree with the union.” The Journal designated as a critical area for the Battista Board’s attention the use of top-down organizing methods such as card check and so-called neutrality agreements that denied employees a secret ballot—the NLRB “gold standard” for determining whether employees want a union.23

Six months before the Journal criticized the Battista Board for its delay in reversing Clinton Board precedents, the AFL-CIO Executive Council condemned what it charged was the Battista Board’s assault on workers’ rights. According to the Executive Council, the Bush majority had “perverted” the Board into becoming a dangerous enemy of workers’ rights and had entered “one of the most shameful chapters in its 69-year history.”24 Chairman Battista dismissed the AFL-CIO’s accusations as the result of the organization’s “zeal to promote its political agenda.”25

The Battista Board was a divided Board. Members Liebman, Walsh, or both, dissented in approximately 34 percent of the majority’s decisions— twice the previously highest rate of dissents in 1984 during the contentious chairmanship of Donald Dotson. Even that unprecedented rate of dissenting opinions obscures the fact that Liebman and Walsh dissented in almost every major decision reached by the majority.

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