Likely Next Spring
The future path of labor organizing in the United States will be determined by a decision in a landmark case the National Labor Relations Board is likely to render next spring.
NLRB Chairman Robert Battista told a labor law conference in a November speech that the boards conclusions in the landmark case will probably be out after the filling of vacancies for two members whose terms expire at the end of the year. Dana and Metaldyne, two cases that have been consolidated into one, were brought by employees represented by the National Right to Work Legal Defense Foundation after their shops were organized by the United Auto Workers under voluntary or card-check recognition.
The case places in jeopardy the commonly used and legally accepted method of card-check recognition, whereby an employer agrees to recognize a union if a majority of workers sign authorization cards indicating their desire to join. Both the National Labor Relations Act and the Supreme Court have recognized majority verification as a viable organizing alternative to an NLRB secret ballot election. Many unions prefer card-check to the NLRB process because it is usually faster. Also, during a representative election ampaign, one in four employers fire at least one worker for union activity and half of all companies threaten to close plants if workers choose union representation.
Supporters and opponents of card check recognition have been flooding the NLRB with briefs on the case. The United Transportation Union made a strong argument in favor of the organizing method in its filing.
"Any attempt in this proceeding to overturn or weaken current precedent regarding the voluntary recognition bar would completely run afoul of the NLRAs purpose," the UTU told the NLRB. "To eliminate or weaken the present standard would essentially result in the elimination of voluntary recognition as we know it, since without it, the parties would end up in the rank miasma of workplace politics instead of working towards a cooperative, orderly resolution of issues between the employer and employees."
NLRB Chairman Battista is one of three Republicans on the board who were appointed by Bush. One Democrats term is up at the end of the year and one Republican members recess appointment expires at the end of the current congressional session. Battista said he hopes a full board would decide the card check case, but that would require presidential nomination and confirmation by the Senate.
Steve Berzon, a San Francisco labor lawyer, told the BNAs Daily Labor Report that the major cases the NLRB has decided in the past year show "an emerging hostility to labor-management cooperation which I think is profoundly misplaced in a 21st century economy."
Both employers and unions have found success in neutrality and card-check agreements, under which ground rules such as providing limited access with a no-strike clause, create conditions that are very non-disruptive and inexpensive for management, Berzon said.
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