NLRB Is Shifting Into Neutral

The National Labor Relations Board has tilted far enough from its once blatantly pro-management posture that AFL-CIO President Lane Kirkland can no longer fairly charge that it is run by “promiscuous hustlers for management.”

The agency was created in 1935 as a legal referee in labor-management disputes, but it is dominated by Reagan and Bush administration appointees who represented management before their appointments.

However, several recent NLRB actions at the national and regional levels reflect a shift toward the more neutral position it should have, although companies need not worry that it has become pro-union. The agency continues to stress management rights over those of workers and their unions. Also, the money and time taken to process cases almost always hurts workers more than corporations, which can more easily afford such costs.

Congressional action is the best way to achieve the goal of the original National Labor Relations Act to “encourage” collective bargaining between firms and unions and to help balance their power.

Legislative action, unfortunately, is not likely any time soon. However, some relief from the law’s bias against labor seems to be coming in the way the law is being administered.

One encouraging sign of change: the initial ruling by the agency’s general counsel, Jerry Hunter, that workers for Greyhound Lines Inc. were forced out on strike by the company’s unilateral revision of its union contract. Greyhound cut wages and benefits and then illegally hired permanent replacements for the strikers, Hunter ruled.

A company may legally hire permanent replacements if it does not deliberately force a walkout.

The NLRB also accused Greyhound of threatening, intimidating and provoking violence against strikers, but that case is still pending.

Similar charges have been filed against the New York Daily News management by the NLRB regional office.

Another sign of change is a sensible NLRB decision that goes before the U.S. Supreme Court next Monday. Yet even that case demonstrates a critical problem facing labor under the law: the extremely long time that it takes for the NLRB to complete an action.

After several years of considering ways to speed up union representation elections in hospitals, the NLRB in 1988 finally proposed regulations that could substantially increase the ability of unions to recruit millions of health-care workers.

But using management’s time-dishonored process of delaying labor cases, hospital executives found a judge who stopped the NLRB from implementing its regulations, pending appeals.

Now, at last, the Supreme Court will decide whether the agency was legally correct in proposing regulations that so shocked and infuriated hospital officials.

The NLRB had only suggested streamlining union representation elections to help eliminate some of the procedural loopholes that management uses to thwart the election process.

Management generally wants to influence the outcome by including in the election many workers who can be expected to vote against the union. Unions usually want to include workers who are in somewhat similar job categories and because of their “community of interest” are more likely to vote for the union to represent them.

To deal with the issue, the NLRB can divide a company into “bargaining units.” Management and union representatives often argue in lengthy, costly hearings over which workers will be in a unit and therefore can vote in the election.

When the issue came up in some hospitals in 1984, the NLRB was dominated by ultraconservatives who, as expected, ruled for management. The agency said each union representation election petition would have to be decided, company by company, in a time-consuming process. It also helped management split employee ranks by saying that, for instance, both nurses and doctors could be included in the same bargaining unit even though they seldom have the same economic interests.

But the more moderate NLRB decided to try to avoid constant legal battles at each hospital over the bargaining unit question. It proposed creating eight separate units for all hospitals so that, for instance, nurses, doctors, security guards and lab technicians would each automatically be put into their own bargaining unit.

The Supreme Court is not a bastion of liberalism, but it just might sustain that logical NLRB ruling and thereby encourage other equally rational ones.

Reducing the board’s once intense pro-management bias helps workers, but a recent study by the General Accounting Office found that the NLRB still takes too long to process cases. The GAO reported that between 1984 and l989, the median case-processing time was the highest in NLRB history. Some cases took a decade or more, and 17% took more than two years to be decided.

The NLRB’s generally admired current chairman, James Stephens, says less time is now needed to reach decisions when cases reach the five-member board in Washington. But he warns that inflation-induced staff cuts are slowing the agency’s investigations and hearings at local-level NLRB offices.

The only labor reform law that Congress is seriously considering is one to limit the self-contradicting right of employers to permanently replace workers who cannot legally be fired for striking.

That would be a major step forward, but it faces a certain Bush veto. And even if a veto were overridden, that measure alone would not ensure fairness. Our labor laws need a major overhaul.

As long as an anti-union Administration is in the White House, it looks as if labor will have settle for a moderation of the way the NLRB administers federal labor law.