By Richard Hankins

This week’s joint Congressional hearing entitled, “The National Labor Relations Board: Recent Decisions and Their Impact on Workers’ Rights” was, as expected, entertaining. Predictably, the majority of the witnesses selected by the Democrat-controlled committees asserted that the Board’s recent decisions undermined employee rights, while current Board Chairman Robert Battista (appointed by President George W. Bush) and former Board Member Charles Cohen (appointed by President Clinton to fill a traditionally Republican seat) disagreed. There was partisan rhetoric from the committee members and from some of the witnesses. But amidst all of that, there was clarity about the central point of contention – whether the United States government should be in the business of promoting union representation.

Supporters of organized labor point to language in Section 1 of the National Labor Relations Act:

It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

At yesterday’s hearing, it was stated more than once that the statute declared “a policy of encouraging collective bargaining.” But the remainder of the above-quoted paragraph got scant attention. Those who study labor history know that encouraging collective bargaining was the very clear intent of the original NLRA (1935’s Wagner Act), but whether that is still the case was called into question by the Taft-Hartley Act amendments in1947. Those amendments, among other things, provided that employees have the right to refrain from union activities and that employers have the right to non-coercive free speech. Sixty years later, the Taft-Hartley amendments remain controversial.

In his testimony, Chairman Battista noted that he agreed that the Board was obligated to encourage collective bargaining, but he said the question was: “When does that encouragement begin?” He clearly believes that the obligation begins after employees have freely chosen union representation. Chairman Battista has been the focal point for much of labor’s political pressure of late, and he was not treated kindly at the hearing. That is unfortunate and grossly unfair. Chairman Battista has always made clear his view that the Act provides rights for employees and is not intended to favor management or unions. In the polarized world that we live in, any decision that doesn’t favor unions seems to be viewed as favoring businesses. Perhaps one day, when the PR machine moves on to another topic, some labor scholar will do a fair analysis of his work and will discover that protecting individual employee rights was always the principle that guided the Chairman’s vote, whether it benefited management, unions, or neither of them.

I must say that I was impressed with Member Liebman’s testimony, even though I didn’t agree with much of it. Her personal warmth and sincerity do not come through in her passionate and sometimes fiery writing style. It is abundantly clear that Member Liebman believes that employees are better off when they engage in collective bargaining and that the Board’s decisions should encourage all employees to do so. Whether one shares her view or not, it is hard to imagine a more eloquent spokesperson for that perspective.

The extent of Member Liebman’s convictions are revealed in her strong words about the Board’s recent decisions. She protested that the right to engage in union activity has too often been required to yield to private property rights, managerial prerogatives, business justifications, notions of workplace decorum and civility, and employer free speech rights.

At least one Congressman professed to be shocked at Member Liebman’s statement. But that is really where things stand today. Many in the labor movement, in government, and in academia honestly believe that the government should place the right to engage in collective bargaining (and the process of obtaining that right) above most other rights. Frankly, I don’t think most Americans want that to be “the policy of the United States.” But if collectivism wins the day, unions will rejoice and businesses will still find a way to make a profit. Individuals, however, may long for the return of Chairman Battista.

Additional Reading:

- Labor Board Under Attack – Washington Post

- Critics Say Labor Board Favors Business -- New York Times

- Witness testimony from the Hearing:

• Robert J. Battista, Chairman, National Labor Relations Board, Washington, D.C.
• Wilma B. Liebman, Member, National Labor Relations Board, Washington, D.C.
• Professor Matt Finkin, University of Illinois, Champaign, Illinois
• Jon Hiatt, General Counsel, AFL-CIO, Washington, D.C.
• Feliza Ryland, Old Star Resort, Orlando, FL
• Charles Cohen, Partner, Morgan Lewis, Member of the National Labor Relations Board (1994 – 1996), Washington, D.C.