Proving that executive signing statements aren’t the only easy way for a presidential administration to bypass such trivialities as the democratic legislative process, federal regulatory agencies under the Bush administration have taken partisanship to an extreme.
So extreme, one such agency, the National Labor Relations Board (NLRB), is purposely pursuing an ideological agenda—one that rolls over workers, seeking to create a Dickensian world in which we all must futilely ask our employers: "Please, sir, may I have another?" NLRB chairman Robert Battista admitted as much last week in testimony before a joint House-Senate subcommittee hearing on the NLRB and its impact on workers’ rights.
By his own admission, Battista has engaged in an ideological agenda at the NLRB, seeking to correct what he saw as a left-wing imbalance of previous rulings. One does not swing the pendulum from “the left to the right” without intentionally pursuing an overtly ideological agenda.
(Bowers covered the hearing for us at the AFL-CIO Now blog.)
Wilma Liebman, one of two Democrats on the NLRB, said the board has gone far beyond the slight shifts in ideology and policy each administration seeks when a new president appoints NLRB members (see video).
Something different is going on—more ‘sea change’ than ‘see-saw.’ The current board, it seems to me, is divorced from the National Labor Relations Act (NLRA), its values, and its goals….Virtually every recent policy choice by the board impedes collective bargaining, creates obstacles to union representation, or favors employer interests.
In September, the board rammed through a series of virulently anti-employee decisions—some say, because Battista and the other NLRB Bushies see the jig might be up in 2008 and want to do as much harm as possible before then. But the September rulings are just part of the Bush NLRB’s systematic efforts to weaken or kill federal labor law enacted to protect workers’ bargaining rights. It was not accidental that Bush appointed Battista, a management lawyer in the 1990s for the union-busting Gannett/Knight-Ridder jointly operated Detroit newspapers.
Regulatory agencies like the NLRB always take on a partisan cast, depending upon who’s in power. But under Bush, partisanship has turned into extremism, and in the case of the labor board, what we see is an ideological war against all that unions represent—worker solidarity and strength.
In one of the Bush NLRB’s most fanatical decisions, the board last year expanded the definition of supervisor, meaning up to 8 million workers no longer will be eligible to join unions because under current U.S. labor law, supervisors cannot join unions. The ruling is so extreme that Human Rights Watch, which monitors human rights worldwide, condemned it, saying:
It sets the stage for destroying the rights of millions of workers to form and join trade unions and to bargain collectively. By stripping all protection of these rights from employees mislabeled as supervisors, the decision violates the principles of freedom of association as established in international law.
In 2004, in the first major decision by the Battista board, the NLRB’s Republican majority ruled that Brown University graduate assistants were students, not employees, and could not form unions at private universities unless the institution was benevolent enough to let them do so. The ruling overturned a Clinton-era decision asserting graduate student employees at private universities had the right to form unions.
The decision affected graduate student/employees at the University of Pennsylvania, where Bowers was working with student/employees seeking to form a union. Penn’s response to the ruling was not unlike that of any employer:
Union recognition is not likely, university spokeswoman Lori Doyle said. "It’s a philosophical issue. They didn’t come to Penn to take a job; they came here to get an education."
Doyle said the university had advisory groups to deal with graduate issues. "We don’t need an outside union to represent graduate students," she said.
Any graduate teaching assistant will tell you there’s more than education involved when you’re working to prepare lectures, lead discussions and grade piles of papers and exams—and provide research for full-time professors so the Big Names can fulfill their "publish or perish" duties.
In defending the NLRB, Battista, whose term expires this month, made a lot of noise about how the board was fulfilling its duties. Tellingly, Battista also noted that
the board’s current enforcement rate in the Courts of Appeals is the highest in the history of the agency. This is the best evidence that our decisions are faithful to the Act.
Actually, it’s the best evidence that the Bush administration has succeeded all too well in circumventing yet another of the checks and balances our nation’s founders initiated by stacking the judicial system with extreme ideological appointees who rubber-stamp extremist decisions rendered by Bush appointees.
NLRB decisions affect millions of America’s workers. And they affect workers one on one. Like Feliza Ryland, who was a housekeeper at the Grosvenor Resorts in Orlando, Fla. She and some of her co-workers were fired after going on strike when contract negotiations stalled and in 2001, before Bush stacked the NLRB with anti-worker members, the NLRB agreed the workers were illegally fired and entitled to back pay.
Later, the Bush NLRB ruled Ryland and other workers were not entitled to full back pay because they did not leave the picket line soon enough. The NLRB said the workers forfeited the right to full back pay because they picketed for several weeks to get their jobs back—jobs from which they had been unlawfully terminated—rather than looking for new employment. Giving full back pay would “promote idleness,” the majority said. Ryland testified:
It has now been more than 11 years since I was unlawfully fired, and I am still waiting to see the back pay, still waiting to see justice. Workers who are fired for trying to organize and bargain for a better life have been mistreated for exercising their rights. It should not take so long to get justice.
We in the union movement have protested the NLRB’s actions in the street and in the international arena. In October, the AFL-CIO filed a complaint with the United Nations International Labor Organization (ILO) charging the Bush administration’s NLRB with denying workers’ rights in violation of international labor standards.
But it’s going to take a progressive victory in the 2008 elections to begin the shift away from government by executive fiat, one of whose legacies are rulings by an ideologically twisted labor board. As Liebman sums it up, the NLRB has
reached back decades, in some cases, to reverse long-standing precedent going to the core values of [our nation's labor law]. The impact on workers’ rights has been uniformly negative. Today, fewer workers have fewer rights and weaker remedies under labor law.