The Persistence of Union Repression in an Era of Recognition

Source: Anne Marie Lofaso, Maine Law Review, Forthcoming

From the abstract:
This article focuses on several of the sixty-one decisions issued by the NLRB’s five-member Board in September 2007 as well as a few of its other more controversial decisions. The labor community has come to regard the Board’s September 2007 decisions as the “September Massacre.”

The term “massacre” suggests an indiscriminate and instantaneous destruction of a large number of longstanding labor doctrines. But, on closer scrutiny it becomes clear that many of the September decisions fit into a long history of legislative, administrative, and judicial cutbacks to the original NLRA.

The September Massacre, then, is more accurately viewed as the latest, and perhaps most serious, attack on workers’ rights–this time by a Board controlled by appointees of President George W. Bush (“the Bush II Board”). Nevertheless, the characterization of the September decisions as a “massacre” is arguably accurate for two reasons. First, in many instances, the Bush II Board’s September 2007 decisions cumulatively chip away at the NLRA’s protections more vigorously than during previous administrations. Second, while historically the courts and Congress have been responsible for much of the NLRA’s erosion, the September Massacre was wrought by the very administrative agency charged with protecting Section 7 rights (i.e., the fundamental right of working people to band together collectively for mutual aid and protection).

Section II of this article discusses the aggregate, weakening effect on the NLRA by the Bush II Board and prior governmental action. This aggregate weakening effect is demonstrated by focusing on four topics: the narrowing statutory definition of employee; the shrinking scope of NLRA Section 7; the dilution of economic weapons; and the rejection of some lawful remedies. Section III of this article illustrates the damaging role that adjudicative delay has had on the Board’s power to administer industrial justice. Section IV of this article examines one of the most prominent (and perhaps most damaging) of the September 2007 decisions–Dana Corporation. Section V of this article concludes with some remarks on what the labor movement can do to regain economic and political power.

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