Friday, January 06, 2006


Ohioan named to labor board doesn't bode well

It's the weekend, so will use a little of our free time to bloviate on a story that has generally been overlooked by Ohio's newspapers (even though it's central figure is an Ohioan), an unfortunate situation since in affects about 2 or 3 million Ohioans who have a family member that belongs to a union.

This has to do with W's recess appointment of Peter Kirsanow to the National Labor Relations Board. Now in fairness, we have to say that the PD initially covered the fight that erupted when Bush announced his nomination of Kirsanow to the NLRB in a lengthy story in November.

The PD's interest is understandable since Kirsanow is a Clevelander and partner in the Benesch, Friedlander, Coplan and Aronoff law firm. He is also known as a "management" labor law person, meaning these days that one of his areas of expertise is help companies screw their employees "maintain a union-free environment" (from the B,F,C&A website: "In addition, our attorneys represent employers in proceedings before the National Labor Relations Board and regularly counsel employers on maintaining a union free workplace").

The reason that Bush had to make a recess appointment of Kirsanow is that Senate discussion of Kirsanow was starting to stir up a shit storm. No stranger to controversy, Kirsanow was a contentious appointment in 2002 to the U.S. Civil Rights Commission when chair Mary Frances Berry attempted to fight the appointment because it also required unseating a Clinton appointee, Victoria Wilson. In brief, his tenure did not suggest that he and MLK would have ever seen eye-to-eye except in discussions about what time it is.

What do more do we know about Kirsanow and labor issues? We know that:
More importantly, as Alison Grand of the PD somewhat reports, Kirsanow's appointment to the NLRB is a distressing development and a furtherance of the polarization within the Board.

But Grant's story about the NLRB is not fully accurate. What the story gums up is the fact that the official policy of the U.S. government - at least from the days of Roosevelt - is that it should, through agencies like the NLRB, facilitate employees right to organize unions, and to hold fair and free elections.

Put another way, the policy of the US is not to oppose unionization. Otherwise, agencies like the NLRB would have no reason to be created. By definition, the continued statutory existence of the NLRB - from a policy point of view - is an affirmation of the national policy of the right to organize.

Alison Grant is correct in stating that the members of the NLRB are supposed to be "impartial," but this impartiality isn't a reference to ideology. In the beginning, at least, it was simply a demand for integrity and no current or future conflicts of interest. It was understood, almost as common sense, that there was nothing, per se, wrong with unionism.

Early NLRB members were drawn from government or from neutral backgrounds. In subsequent years, other members were also drawn from the "mainstream" of labor-management relations, where there was little ideological opposition of unions. In otherwords, it was perfectly consistent to be pro-management but not anti-union. A subtlety, but an extremely important one, nonethless, that Grant totally misses.

That's surprising because one of Grant's main sources for her story is Joan Flynn, a law professor at CSU's school of law. Flynn recently wrote an excellent historical piece on the NLRB which was published through the OSU school of law.

Attacks on the integrity of the NLRB Board began during the Eisenhower era which opened the door to both openly partisan appointments and appointments of direct representatives of both management and labor.

Still, no appointee flirted with anything close to something that could be interpreted as "anti-union."

As Flynn points out, that changed with the Reagan administration:
Whereas his predecessors had appointed management lawyers from well-known law firms - solid members of the labor-management “club” - Reagan went wholly outside the mainstream labor relations community in his early appointments. His first choice for Board chair, John Van de Water, was not a management lawyer at all—but rather a management consultant who specialized in defeating union campaigns.
In other words, both ideological and conflict-of-interest barriers to being on the NLRB were tossed out under Reagan, despite the official policy of the US.

The only question left was how stridently anti-union the appointee could be. W has answered that question by appointing Kirsanow, one of the few people that could make John Van de Water look like John L. Lewis.

Nearly as distressing as Kirsanow's recess appointment is the fact that at the time the White House made it's announcement, there were actually two vacancies. As the AFL-CIO notes, W could have also made a recess appointment of Dennis Walsh, a former NLRB member who was nominated in April. Walsh is generally considered to be union-friendly and is a Democrat, and the act of appointing Kirsanow and not Walsh leaves the NLRB severely tilting in the anti-union direction.


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