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As the Clinton era draws to a close, the National Labor Relations Board is under fire for disregarding its own old precedents and tilting toward labor. Union lawyers — pleased with two major recent rulings, on temps and on the disciplining of nonunion workers — say that management lawyers are playing a game of hype and intimidation. Representative John Boehner, R-Ohio, chair of the House labor subcommittee, chided the board at a Sept. 19 hearing: “I cannot look at the recent decisions and help but conclude that activism is alive and well.” The official statistics show that this year the board has issued eight decisions overruling NLRB precedent — seven of them in the past three months. There were 14 such reversals in 1999 — for a total of 22 in the past two years. That compares with a high-water mark of 18 overrulings in 1984, when the board was controlled by Republicans and was seen as pro-management. With the current board controlled by Democrats, labor attorneys say, the recent reversals were broadly pro-labor. “I do not claim that it shows bias,” Edward Miller, a former Republican NLRB chair, has written, “although I have seen no cases as yet in which this board has overturned any past decision in a way which would favor employers.” Kenneth Dolin, head of the labor practice at Chicago’s Jenner & Block, suspects a secret agenda to issue pro-labor decisions before Clinton’s term ends. NLRB Chairman John Truesdale, 79, who came out of retirement to preside over the Clinton twilight, insists that his only agenda is to reduce the backlog. “A large number of old cases had piled up, raising major issues,” says board spokesman Dave Parker. Bill Gould, the NLRB chair from 1994 to 1998, says that because of agency-Congress dynamics, overrulings tend to be clustered at the end of the fiscal year, which creates an illusion of radical change. He calls this summer’s significant rulings “long overdue.” Can any trend be discerned in the new decisions? “For the most part,” says Dolin, “they try to extend collective bargaining to the unorganized.” Not all experts agree. But it’s clear that the NLRB has extended the coverage of labor laws. Says Roger King, of Jones, Day, Reavis & Pogue, “You’re going to have many employers who never thought of the word ‘union’ having to pay attention to the NLRB.” FOUR MAJOR RULINGS The controversy centers on four major rulings, two this summer and two from 1999. Each overturned an NLRB precedent of at least 15 years’ vintage. All these issues are likely to reach the federal courts, but — because the rulings apply retroactively — counsel say that corporate managers ignore them at their peril. � M.B. Sturgis/Jeffboat Division, 331 NLRB No. 173 (Aug. 25, 2000), lets temps join a collective bargaining unit with the regular employees alongside whom they work if they share a “community of interests,” even over the objection of both employers. � E pilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (July 10, 2000), extends to nonunion workers the right to be accompanied by a co-worker to a meeting that might result in discipline. � Boston Medical Center,330 NLRB No. 30 (Nov. 26, 1999), defines interns, residents and fellows as nonsupervisors; makes them eligible to organize. � Mississippi Power & Light Co.,328 NLRB No. 146 (July 26, 1999), defines power dispatchers as nonsupervisors; also makes them eligible to organize. Professor Charles Craver of George Washington University National Law Center argues that all of these overturnings, except Epilepsy Foundation, were clearly justified by changed circumstances. Sturgis responds to the emergence of temps as a large, permanent part of the work force. Boston Medical, he says, responds to the evolution of hospital residencies from an educational arrangement to a professional arrangement. And Mississippi Power suggests that, perhaps especially in technical or professional settings, “[g]reater autonomy, responsibility, and accountability are being afforded to workers at all levels of the organization.” Union membership increased by 265,000 in 1999, and Dolin, for one, thinks legal developments paved the way for the unions’ change of fortune. But the general counsel of the AFL-CIO, Jonathan Hiatt, and the GC of the fastest-growing union, Judith Scott of the Service Employees International Union (SEIU), agree that there is little or no connection between the membership gains and legal changes. Hiatt says most of the growth has come through non-NLRB elections. Scott attributes the growth to market forces and organizing drives, although she concedes that Boston Medical opens an important new field for recruitment: young doctors. The dissent in Sturgis said the ruling aimed to “facilitat[e] union organizing in the modern workplace.” But pro-labor and independent observers argue that Sturgis was no home run for unions. Craver notes that the management in Sturgis was actually the party that supported joint bargaining for the temps. Temps have historically not been union-friendly, he says, so grouping them with regular employees may dilute union support. “The decision will, in the long run, favor management,” he predicts. Hiatt of the AFL-CIO, fears that, depending on how “community of interests” is interpreted, the decision may affect only “permatemps” and not short-term temps. He also complains that the NLRB timidly declined to redefine what it takes for the temp agency and the contracting company to be called joint employers. “I see this decision as a positive development,” he says. “Is it major? I don’t know. That remains to be seen.” Dolin maintains that Sturgis has the potential to make organizing easier for all types of temps. What’s clear, he says, is that it will lead to more litigation costs, as it outlines a fact-specific inquiry. NONUNION NO LONGER? The generalization all observers seem to accept is that the new decisions broaden the scope of labor law coverage. “What they do,” says ex-Chairman Gould, “is to bring into legislation regarding the work force those who had been previously excluded.” Gould hastens to add that there’s nothing new or radical about the NLRB’s regulating nonunion employers. “Since this law was passed in the ’30s, it has always applied to nonunion workplaces,” says Hiatt. Craver and Gould both argue that the Clinton NLRB has been far less activist than the Reagan NLRB under Donald Dotson. In some cases, the board is simply reversing a Reagan-era reversal. “Management attorneys have basically been crying wolf,” says Scott of the SEIU. “It’s their main weapon against the board doing anything innovative. This is an agency which has been relatively steady in its case law analysis and has done nothing dramatic to warrant that type of attack. They’re making mountains out of molehills.” Board decisions have been fully affirmed by 79 percent of reviewing courts this year, a rate near the top of the historic range.

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