Legal — 5

II. The National Labor Relations Act
The National Labor Relations Board is the federal agency that is responsible for conducting representation elections and prosecuting unfair labor practices. The purpose of the Agency is to promote stable collective bargaining relationships, and in our last report t
the 2000 Grand Lodge Convention, we were able to report many accomplishments in large part because the Clinton Administration was worker-friendly. During those years the Agency was staffed with individuals, both Board members and General Counsels, who were committed to the fundamental purpose of the law.

As a result, we got rulings and procedures that brought more employees within the coverage of the law so they could bargain with their employers, that allowed more employees to achieve recognition and bargaining in non-traditional ways (like through the use of neutrality agreements), and that chose stable collective bargaining relationships in the face of challenges to continued representation and bargaining. It was clear that the Bush Administration would not allow the Agency to continue along this path, although it has been slow to seat a full Board and the current General Counsel has been slow to make wholesale changes in the procedures and policies adopted by the Clinton General Counsels. Moreover, the two Democratic appointees on the Board, Wilma Liebman and Dennis Walsh, are former union-side attorneys, who are working hard to keep the Agency from backsliding.

Nevertheless, there have been some warning signs of trouble ahead, as the current Republican Chairman has announced the Board’s intention to review a number of issues that had been decided in favor of workers and unions during the Clinton Administration. For example, the Chairman has said the Board will review cases involving:

■ Whether employees provided by a temporary agency should be included in a bargaining unit;
■ employer restrictions on employee email use related to protected, concerted activities;
■ a requirement of proof to show loss of majority status in order for an employer to withdraw recognition;
■ lawsuits filed in retaliation for the exercise of Section 7 rights;
■ the employee status of university graduate teaching assistants;
■ the supervisory status of nurses (and potentially other employees who exercise some decision-making in the course of their jobs);
■ a successor employer’s refusal to hire a predecessor’s employees in order to avoid having to recognize and bargain with a union;
■ the legality of union videotaping of employees;
■ the applicability of the right to representation in the disciplinary process in a non-union setting.

There are other reasons for concern. In a highly unusual move, the Board recently filed an amicus brief in support of a Chamber of Commerce lawsuit challenging a California law that prohibits employers from using taxpayer dollars to pay for employer anti-union campaigns. Those of us on the labor side thought that this was a fairly modest attempt to ensure that state funds would not be used to subsidize anti-union campaigns. And, given the accounting and record keeping requirements already imposed on unions under the dues objector laws and the new DOL financial reporting requirements, the requirement that California employers account for how they use state funds hardly seemed burdensome.