VOL. 109 | NO. 40 | Thursday, November 30, 1995
11/29 jts law focus
Clinton-appointed National Labor Relations Board more aggressive
Injunctions, expanded jurisdiction, decision reversals indicate an assertive, pro-labor panel
By JAMES SNYDER
The Daily News
In the warring arena of management-labor disputes, it seems both sides rarely would see eye-to-eye. But there is one thing they appear to agree on: the National Labor Relations Board has changed dramatically with the Clinton administration.
Local management and labor lawyers concur that the board and its aggressive general counsel lean toward labor much more than its predecessors appointed by former President George Bush.
The new board has been especially assertive in expanding its jurisdiction, imposing injunctions against employers and overturning decisions made by regional boards.
In short, its getting more fingers into the pie.
The board injected itself into a labor dispute at the Regional Medical Center (The Med) this year. The previous board had decided it did not have the jurisdiction to intrude on the dispute because The Med is a public institution.
But the current board thought otherwise and filed a complaint when The Med refused to recognize its labor union.
"We settled the day before the trial, leading to an agreement recognizing the union and a new collective bargaining (arrangement)," said Mark Allen, a labor lawyer with Agee, Allen, Godwin, Morris and Laurenzi in Memphis, who represented the union.
Moreover, the general counsel allowed the regional board to seek an injunction in federal district court to force The Med to recognize the labor union. But the regional board decided against going that far, and the dispute was settled.
The national board took similar action in a series of disputes involving Tennessee public electric cooperatives similar to Memphis Light, Gas and Water. The general counsel reversed a decision made by the Bush Administration board and asserted jurisdiction over labor disputes, Allen said.
Jeff Weintraub, a local management lawyer, cited a recent decision made by the Memphis regional office regarding the number of workers who could vote in a labor election.
The national office overturned the regional boards decision, arguing more workers were eligible to vote, effectively postponing the election for weeks, said Weintraub, who argued the national board used inappropriate criteria for boosting the number of workers eligible to vote.
The change is a marked break with the past. Labor dispute lawyers agreed the boards new general counsel Frederick Feinstein has spurred the flurry of activity. But depending on whom you talk to, the result could be good or bad.
Weintraub sees the newly active board as a bad omen for his clients, who may have to fend off unfair injunctions and charges of bad-faith bargaining.
Labor attorney Alan Blair sees in that same board a champion of his clients, co-opting the power of firms who want to squelch or ignore workers pushing for better conditions and salaries.
"Employers today have to be much more careful in terms of bargaining, so that they dont unintentionally violate some board requirement and (are) thereby found to have bargained in bad faith," Weintraub said.
Blair agreed. "I wouldnt dispute that," he said. For his clients, a careful employer is a fairer employer.
Compared to the board under Bush, the newly active board has lodged many more official complaints to force litigation of labor disputes. It also is issuing more injunctions, which compel employers to do certain things such as recognizing a labor union or keeping them from locking out workers.
The board also can overturn regional office decisions and force firms to foot all legal costs. Weintraub says he sees a bias on the part of the board willing to issue investigative subpoenas on behalf of labor but more reluctant to do the same thing for employers.
But the effect may be strictly bureaucratic. Weintraub recalled a conversation he had with national board member Margaret Browning, who told him that while injunctions were up, the percentage of board wins remains constant.