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June 21, 2004

NLRB Unrolls Assault on Labor Rights

Partly due to slow and revolving appointments to the National Labor Relations Board, the Bush NLRB has not had a solid three-member majority (two out of the five members are members of the opposition party) to fully crack down against labor rights.

That's now changed.

Major decisions are starting to come down and one of the major ones expected was decided just over a week ago. What was the decision?

To strip 91% of private employees -- all workers in non-union settings -- of rights under the labor law. This may surprise some people, but rights under the National Labor Relations Act are not restricted just to folks in the AFL-CIO. Anyone acting to defend work conditions in the workplace are protected to some extent by those laws, whether you are in a union or not.

How much protection is hotly contested, and the Bush labor board decided-- Not Much.

Here's the core of the decision. In 1975, the Supreme Court declared that anyone meeting with a supervisor where they thought they might be fired or disciplined had the right to a labor representative there to act as a witness. In 1982, the NLRB decided this right applied to workers in non-union settings who had a right to a fellow worker there in a similar role. Three years later, the now-Reagan dominated board reversed that decision. But in 2000, in what was called the Epilepsy Foundation decision, the Clinton labor board restored the original right non-union workers had to a witness when they may be fired. This interpretation of the labor law was upheld as valid even by the often anti-union DC Circuit Court of Appeals in 2001.

But the Bush board in a new decision, I.B.M. Corp., killed that right for non-union workers, allowing employers to discipline them without witnesses or moral support.

But to get a clear sense of how stark the difference between the Bush rightwing majority and a board that actually would represent workers, rather than corporate interests, just look at the language used by the dissent and the majority.

Here is what the dissent said in criticizing the decision:

Today, American workers without unions, the over-whelming majority of employees, are stripped of a right integral to workplace democracy. . . Under Section 7 of the National Labor Relations Act, all workers, union-represented or not, have the “right to . . . . engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” It is hard to imagine an act more basic to “mutual aid or protection” than turning to a coworker for help when faced with an interview that might end with the employee fired. . . Due process in the nonunion workplace should not be sacrificed on such dubious grounds. Workers without unions can and do successfully stand up for each other on the job—and they have the legal right to try, whether or not they succeed.
But the Bush majority saw preserving corporate management rights as more important than the labor rights they are charged with protecting:
We simply observe that some employers, faced with security concerns that are an out-growth of the troubled times in which we live, may seek to question employees on a private basis for a host of legitimate reasons...
Or as one Bush appointee said more bluntly in a concurring decision:
in the nonunion setting, and in the absence of a collective-bargaining agreement, the common-law rights of man-agement, including the right to deal with its employees on an individual basis, must prevail over an individual employee’s insistence on the presence of a coworker at a predisciplinary investigatory interview.
Pay attention to that "common law right" language-- that means that traditional judicial preferences get to trump legislative rights for workers, a classic conservative trope over the years in defending "management rights" that have no legal basis in the law.

And think about it, these conservatives are the ones who go on and on about "special privileges" for unions, yet they go out of their way to turn a general labor right into a narrow right for union workers.

That's no accident, but a strategy. By isolating rights for union members, they then can feed resentment of non-union workers with their rhetoric, acting as if its the unions, not the rightwing, that denied those rights to the general population.

All part of the anti-labor attack that will only get more vicious in a second Bush term, if it happens.

Posted by Nathan at June 21, 2004 08:36 AM