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Battista Board Redux?
Written by Erin Johansson   
February 01, 2008

I was just starting to appreciate a quieter National Labor Relations Board.  Since Battista’s term expired, the NLRB has been content to uphold the law rather than radically gut it.  Yet with President Bush’s recent renomination of former Labor Board Chairman Robert Battista, the ghost of rulings past is pounding on my door…

For those of you who can stomach it, here are some lowlights from the Battista Board…

Stripping workers of their freedom of association

One of Battista’s worst legacies at the helm of the NLRB: Potentially millions of workers no longer have the legally-protected rights to organize and collectively bargain.  The Labor Board stripped those rights from:

The Board also effectively denied union rights to temporary workers, forcing them to get the consent of both their staffing agency and temporary employer in order to organize.

Stifling workplace communication

Virtual Break Room Closed!  Under Battista, the Labor Board ruled that employees are not protected by the law when they email about working conditions, and sanctioned broad employer bans on such communication.

Happy Hour Banned!  Battista and friends also sanctioned employer bans on “off-duty fraternization,” claiming that “fraternization” just meant to hang out or date, not to get together and talk about, say, forming a union.  A federal circuit court later overturned the ruling.

Making it harder to form a union

In twin rulings that Harold Meyerson nominated to the “Double Standard Hall of Fame,” the Republican majority ruled in Dana/Metaldyne that when workers form a union by signing cards or petitions, they are subject to pressure and thus it is not the best way to determine worker sentiment.  However, in Wurtland Nursing, they ruled that an employer could decertify a union when presented with a petition signed by a majority of workers—and that in this case, signed cards or petitions are a perfectly suitable demonstration of worker sentiment.  They made no reference, of course, to the potential for coercion from anti-union managers or coworkers. 

Battista also helped usher through decisions that find pro-union activity by supervisors more objectionable than anti-union activity.  The Labor Board has long allowed employers to force employees to attend ‘captive audience’ meetings where they are often deluged with anti-union propaganda.  Yet in Harborside, the majority overturned the workers’ vote for union representation because of the pro-union position of a low-level supervisor, even though the company ran an anti-union campaign.

Making it cheaper for employers to illegally suppress union activity

Two rulings under Battista’s watch gutted remedies for workers illegally fired for union activity.  In Grosvenor Resort, the Republican majority created a new rule: if workers wait longer than two weeks after they are fired before attempting to find interim employment, they will be denied backpay for that period.  In St. George Warehouse, the majority made it more difficult for fired workers to collect backpay by making victims prove they had adequately searched for work.  They handily relieved employers of the burden of proof, placing it instead on both the victims and the NLRB General Counsel arguing their case.

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About the Author

Erin Johansson Erin Johansson writes our Eye on the NLRB blog.  Erin has worked as a Senior Research Associate at American Rights at Work since 2004 and is the author of some of our reports.  


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