Labor Strikes Back

When labor union leaders in countries like Guatemala and Colombia face death squads and draconian legal restrictions on workers' rights, they often turn to the Geneva-based International Labor Organization of the United Nations for help.

So it was a sign of real frustration, even desperation, that in mid-October the AFL-CIO protested to the ILO that a "sustained assault on workers' rights in the United States" was occurring at the hands of the very agency mandated to enforce this nation's labor laws--the National Labor Relations Board.

For the past six years the Bush-appointed majority of the NLRB has steadily reversed legal precedents and eroded the rights of workers in favor of management--limiting who can form a union, strengthening management power to harass pro-union workers, and refusing effective action against management abuses of worker rights.

One of the most significant attacks came in early October. The Board threw new roadblocks in the path of one of the labor movement's most productive strategies for organizing new workers--securing union recognition as soon as a majority of employees sign union membership cards.

"It's worse than a bad decision," says AFL-CIO organizing director Stewart Acuff. "It's further evidence of ideological bias of the Bush Board. It's incontrovertible evidence that this Board is determined to impede collective bargaining, not encourage collective bargaining, as the preamble of the [National Labor Relations] Act says."

For more than three decades, corporations -- retaining an army of lawyers and consultants -- have used America's labor laws to their advantage against workers. They insist on NLRB-supervised elections, then often delay any vote and exploit the election procedures to intimidate and frighten workers with legal and illegal tactics, so that even many who initially support forming a union eventually vote "no."

But when employers are neutral--as they are in most public employee elections--a vastly higher percentage of workers opt for a union. So more and more unions have decided that if they are going to have a reasonable chance of winning, they first have to persuade employers to be neutral with regard to unions--through pressure, if necessary. Then typically the employer recognizes the union when a majority of workers have signed union cards--what's known as a "card check."

As organizing efforts have shifted away from elections administered by the National Labor Relations Board to neutrality agreements and card checks, many unions have been scoring new successes. It's actually a return to the past: In the early years after Congress passed the National Labor Relations Act in 1935, most workers won recognition through card checks, and the procedure remained a "favored element of national labor policy," as one court decision stated, even as employers increasingly demanded elections.

You might think that the NLRB, the agency responsible for implementing national labor law, would be happy about this card check revival. After all, one of the principal aims of America's labor laws is still, believe it or not, to encourage collective bargaining. And workers' right to organize is an international human right, which the United States is obliged to protect by virtue its membership in the ILO--not that such legal niceties matter much to the Bush administration.

But in keeping with the dark Bushian vision of government, the NLRB reversed established law, making it much harder for unions to win recognition through card checks, or "majority sign-up," and undercutting the incentive for employers to agree to that process.

The decision involved two companies, Dana and Metaldyne, who had agreed to recognize the United Auto Workers through a card check. Then a group of workers, encouraged and supported by the right-wing, anti-union National Right to Work Legal Foundation, petitioned for an election to decertify the union.

Under a 1966 NLRB decision, upheld by later Boards and Appellate Courts, such petitions were barred for a "reasonable period" after recognition to give the new union and the employer a chance to negotiate. Workers could always petition later to decertify the union.

The Bush Board majority rejected the rule that workers had to wait a reasonable period, such as a year, to petition for an election. They argued that if an employer recognizes a union through a card check, the information must be prominently posted. Then as few as 30 percent of workers can petition for an election within 45 days. With that option looming, it would become harder for a new union to negotiate a contract and easier for anti-union forces to try to influence workers. Also, since employers often agree to neutrality and card check to minimize disruption, they would have less incentive to cooperate.

Why this big reversal? The three-member Republican majority maintains they were simply refining the law, but their decision hints at only two relevant changes since the 1966 precedent was established: there are fewer NLRB elections, and unions are turning towards card checks again. They raise the bogyman that organizers could coerce workers into signing cards. But they admit there was no evidence of coercion in these two cases. And there already are ways to punish such coercion if it did occur.

The two Democrats in the minority argued that "nothing in the majority's decision justifies its radical departure," which will subvert both employee free choice and stable collective bargaining. "The majority decision cuts voluntary recognition off at the knees." Certainly the decision will make organizing more difficult, but union strategists say it will not stop them from fighting for neutrality and card check.

The ILO can't reverse the NLRB decision, only embarrass a shameless government in the court of public opinion. But unions may still bring court challenges, either on this decision or future related cases.

Equally important, the Board's decision -- and an ILO rebuke -- could add to awareness of both the public and politicians that Congress needs to pass the Employee Free Choice Act. That legislation would guarantee the right to card check recognition, strengthen unfair labor practice penalties, and provide arbitration if needed to reach a first contract.

All the Democratic presidential candidates have embraced EFCA, which passed the House earlier this year, but business and the Republicans are determined to block it. By overreaching in its curtailment of workers' rights, the Bush National Labor Relations Board may have inadvertently helped underscore the importance of electing a Congress that supports one of labor's top political priorities.