Control Shifts in Nation's Highest Labor Tribunal

Nearly two years into the Bush Administration, the U.S. Senate on Nov. 14, 2002 confirmed all five nominees to the National Labor Relations Board (NLRB). The NLRB will be led by Michigan labor and employment attorney Robert Battista who is designated as Chairman of the agency.

This is the first time in the 65-year history of the NLRB that all five Board members were confirmed at one time. Under the bipartisan appointment process honored for presidential appointments to the NLRB, three members including Battista are of President Bush’s Republican Party and the remaining two are members of the Democratic party. Thus, the NLRB has returned to Republican control for the first time since the early years of the Clinton Administration.

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Meanwhile, the new Board will have to tackle a growing backlog of unfair labor practice cases as well as dealing with several critical pending issues, including the legality of limitations on employee e-mail use, the rights of non-union employees to be represented by fellow co-workers in disciplinary situations, and the greater enforcement of Beck rights that protect non-union members from being forced to fund union political activities with their mandatory dues payments.

NLRB enforcement of Beck has been lax, to say the least. Board members have been slow to act, making excuses to quietly whittle away worker protections for seven years before finally issuing their first Beck-related ruling. The NLRB also has been less than helpful in informing workers about their legal prerogatives, letting unions bury employee Beck notices in the fine print of their newsletters or allow workers to exercise their rights only during short union-imposed "window periods." As a result, according to a 1997 McLaughlin poll, 67 percent of union workers are not even aware of their Beck rights.

A reconstituted NLRB should balance the scale now weighted heavily against workers’ Beck rights – and even bolster legal remedies to unions’ repeated and flagrant violations of Beck.

For example, the new board could require unions to obtain annual permission from objecting workers before spending those workers’ dues on non-workplace-related activities including political causes. This requirement – in essence a form of paycheck protection – would relieve workers of the intimidating task of confronting union officials to get back their already misspent dues, a task that can expose them to union reprisals.

De facto paycheck protection enacted by the NLRB would be an especially welcome development since President Bush’s demand for a paycheck-protection provision in enacted campaign-finance legislation has fallen on deaf congressional ears.

Battista is a renowned employment lawyer of the highest skill, experience, and integrity. He has served as a labor attorney with the Butzel Long law firm since 1965 where he headed the firm’s labor and employment law group from 1985 to 1992. His five-year term will expire on December 16, 2007.

Worker rights including vigorous Beck rights enforcement are once again in good hands at the NLRB because Battista understands that the National Labor Relations Act was passed exclusively for their benefit. We can expect to see great advancement in employee protections under his mature and balanced leadership. The President could not have made a wiser choice in appointing Battista.

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Robert P. Hunter is director of labor policy for the Mackinac Center for Public Policy and a member of the Michigan State Civil Service Commission. He served on the National Labor Relations Board in the 1980s.