GOP-run Senate panel moves against the NLRB

WASHINGTON – With the Senate Labor Committee now in the hands of Republicans – anti-worker, anti-union, from the South, or all three – both labor committees on Capitol Hill are attacking workers’ rights enforced by the National Labor Relations Board.

But while House Education and the Workforce Committee Chairman John Kline, R-Minn., has conducted a war against unions and workers for years, Senate Labor Chairman Lamar Alexander, R-Tenn., and one subcommittee chairman, Richard Burr, R-N.C., are new to the role of leading a committee’s anti-worker anti-union charge.  But they attacked anyway.

Burr called a subcommittee hearing on February 5 to trash the NLRB General Counsel Richard Griffin for his decision to hold franchise companies – think McDonald’s headquarters – jointly responsible with franchise-holders – think your local McDonald’s – for instances of labor law-breaking and worker rights violations at the local level.

That hearing featured moaning from franchise-holders saying the NLRB’s joint-employer mandate would give them less control and headquarters more control over their enterprises, conveniently overlooking the fact that headquarters already handles the name, publicity, product shipments and even workers’ uniform colors.  Millions of workers, almost all non-union, toil for such franchises, which range from hostelries to fast-food restaurants and more.

Backing the franchise holders was an attorney, claiming he was a Democratic NLRB appointee under former GOP President Ronald Reagan, from the notorious union-busting law firm Seyfarth Shaw.  He denounced the NLRB’s action.

Alexander weighed in with a February 11 hearing blasting the NLRB’s “ambush election” rule.  In reality, it’s the set of new union recognition election rule improvements that the full 5-member board adopted in December.  Alexander, Kline and Sen. Michael Enzi, R-Wyom., are drafting legislation to nullify the NLRB’s election rule improvements.

The board’s improvements consolidate all complaints about voter eligibility in one hearing, after the election, reduce delays businesses use to deny and frustrate worker rights and allow both sides to file their documents electronically.

“The ambush election rule forces a union election before an employer has a chance to figure out what is going on.  Even worse, it jeopardizes employees’ privacy by requiring employers to turn over employees’ personal information including email addresses, phone numbers, shift hours and locations to union organizers,” the Tennessee solon charged.

The NLRB wasn’t allowed to defend itself at the two sessions, so pro-worker advocates had to step into the breach.  Marquette University Law Professor Paul Segunda defended Griffin’s joint employer decision as probing how to adapt the existing NLRB joint-employer rule to modern circumstances.

Segunda told the senators that “nothing has been decided yet” in the underlying joint-employer rule case, involving Browning-Ferris Industries.  He also said Griffin is right in probing the new arrangements, including the arrangements at McDonald’s. 

In December, Griffin said that in more than three dozen instances, in cases by workers and their allies nationwide, McDonald’s jointly controls the workers and their conditions with the franchises, whose owners broke labor law in a variety of ways.

“The board is following its usual and ordinary adjudicatory process to ascertain whether employees in certain economic structures are able to properly exercise their organizational, collective bargaining, and concerted activity rights” under labor law, Segunda explained.

“The fact-intensive, complex nature of the joint employer question in Browning-Ferris will help me underscore for the committee the need for a case-by-case approach which considers a number of relevant factors concerning who controls important terms and condition of employment,” he added.

“The board is simply re-examining its joint employer standard to ensure that it properly effectuates the purposes of” labor law.  It’s doing so by asking for friend-of-the-court briefs from all sides in the Browning Ferris case.  “There is nothing extraordinary or unusual about the adjudicatory process the board is following in re-examining its joint employer test,” and it’s not “writing on a blank slate, but must follow a 1964 Supreme Court ruling involving Greyhound as a joint employer with its local franchises.

Another union-buster lawyer, Charles Cohen of Morgan Lewis, led off Alexander’s February 11 jeremiad against the NLRB’s union recognition election changes.  Joining him were a Chamber of Commerce lawyer, the top lobbyist for the Radical Right so-called National Federation of Independent Business and pro-worker attorney Caren Sencer of Alameda, Calif.

The new rules eliminate delay and that “serves the purposes of the National Labor Relations Act in promoting employee free choice,” Sencer testified.  “Employers will benefit because it will reduce the time during which employees are distracted by the campaign and upcoming election.  The new streamlined process will be less expensive for both the employer and the union and will be easier and more consistent to administer.  It is difficult to see how anyone is disadvantaged by eliminating unnecessary litigation and unnecessary delays.

“The rules are not ground breaking, nor, to be perfectly frank, do they go far enough. The rules reflect practices that have been applied in some regions already and are not particularly controversial,” she added.

Meanwhile, Griffin, in a recent memo to NLRB field offices, reiterated his office’s intent to pursue extremely flagrant labor law-breakers through 10(j) court injunctions. And he said that regional offices should keep an eye out in advance for labor law-breaking that could lead to the need for such court orders.  10(j) orders, Griffin said, may be needed not just in cases of illegal firings and employers’ refusal to bargain, but also in cases where a successor employer denies unionists their rights or refuses to hire them.

Photo: AP


CONTRIBUTOR

Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.

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