National Labor Relations Board 2007 Year in Review: Fueling Unions' Demand for Euro-Centric Labor Law Reform
Raudabaugh, John N., Labor Law Journal
Calendar year 2007 marks the fifth year of the Bush Administration's National Labor Relations Board ("Board"). During this period, the Bush Board issued 1,745 publicly reported decisions of which 35 were full, five-member decisions. Compared to the Clinton Board, which in 60 decisions reversed 1,181 years of prior case precedent, the Bush Board reversed 343 years of precedent in 21 decisions.
Over the five years, the Bush Board's decisions were enforced in whole, or in part, by the reviewing courts 87.7 percent of the time. In Fiscal Year 2007, the Board's decisions were enforced in whole, or in part, 97 percent of the time.
Board Chairman Battista's five year term expired December 16,2007, and Board Members Kirsanow's and Walsh's recess appointments expired December 31, 2007 with the sine die adjournment of the 110th Congress, 1st Session. Without a full, five-member Board, pending cases of significance will not issue. With the current two-Member Board, cases can issue only if both Republican Member Schaumber and Democrat Member liebman agree.
During the five years, former Chairman Battista (R) participated in 78.4% of all publicly reported decisions, Member liebman (D) 71.2%, Member Schaumber (R) 71.7%, former Member Walsh (D) 50.7%, and former Republican Members Acosta, Meisburg, and Kirsanow together only 31.7%. On three-member panel decisions, Battista agreed with liebman 62.2% of the time; Schaumber agreed with liebman 59.1%; and the panel was unanimous 55.2% of the time. Battista agreed with Walsh 61.6% of the time; Schaumber agreed with Walsh 61.2%, and the panel was unanimous 57.3%. There were 31 full Board decisions with Battista dissenting 9.7% of the time, liebman 64.5%, Schaumber 3.2%, Walsh 64.5%, and the remaining appointee group of three, S.2%.1
During 2007, organized labor continued its expensive media and political investment demanding labor law reform by promoting its Employee Free Choice Act ("EFCA") (H.R. 800; S. 1041) first introduced in both the House and Senate in 2003 with sponsors claiming "Workers' Rights Are Under Attack," "A Human Rights Crisis" and "Middle Class at Risk." In support of organized labor's proposed legislation, the House and Senate Labor Committees each held hearings, in February and March. The AFL-CIO filed two complaints in February and October with the International Labor Office decrying the Bush Board's assault on workers' rights by undermining fundamental human rights of freedom of association and collective bargaining, conducted a protest outside 20 Board offices and its Washington, D.C. headquarters and hosted a Global Organizing Summit and Congressional Forum accusing the United States of exporting a "lawless corporate culture," "toppling workers' rights worldwide." On August 2, 2007, Senators Durbin (D-IL), Brown (D-OH), Clinton (D-NY), and Obama (D-IL) introduced the Patriot Employers Act ("PEA") (S. 1945) providing a 1 percent tax credit for any U.S.-headquartered company that employs 50 or more employees, pays at least 60 percent of each employee's health care premiums, and is neutral in employee organizing drives.
The year ended with a joint House and Senate Hearing on December 13 publicly attacking the Bush Board's record-especially the Board's "massive assault on workers" when, in September, the last month of the federal government's 2007 fiscal year, it issued "61 mostly anti-worker decisions."2 In her written Congressional testimony, Member liebman (D) declared that "[t]he Board majority regularly has found that employee statutory rights must yield to countervailing business interests." liebman's remarks concluded noting:
At its heart, the [National Labor Relations] Act is...a human rights law.... The concept of fundamental rights at work is now part of the international legal order. Freedom of association and the freedom to engage in collective bargaining are recognized as core principles of a democracy. …