New York Times Seeks to Undermine NLRB’s Pro-Union Actions

by Randy Shaw on April 26, 2011

In a recent three-day span, the New York Times ran two major stories accusing the National Labor Relations Board of taking an “activist stance” in filing an action against Boeing for seeking to move airplane production from a union plant to a non-union operation. Lafe Solomon, the NLRB’s acting general counsel, found Boeing violated federal labor law by seeking to retaliate against workers exercising their right to strike. While the NLRB’s action is consistent with its mission, it is a departure from nearly a decade of anti-worker NLRB rulings by the former Bush-appointed Board. And despite this being the first major NLRB action favoring unions since Obama took office in January 2009, it has clearly troubled the New York Times and its labor reporter, Steven Greenhouse. In what is an unfortunate pattern, Greenhouse’s April 23 story relies on an academic with a financial conflict of interest as his “objective” source, describes Board counsel Lafe Solomon’s “activist stance,” and forces Solomon to defend against charges that he is a “radical.” Meanwhile, Greenhouse waits until the seventeenth paragraph to quote a Reagan NLRB appointee saying that, contrary to the impression created by Greenhouse’s two articles, the Obama-appointed NLRB has in fact “been more moderate than the Reagan board.”

Organized labor won little for its over $200 million investment in the November 2008 elections, with its top priority – the Employee Free Choice Act (EFCA) – never even getting a Senate vote. And after President Obama delayed making appointments to replace Bush’s anti-union majority on the NLRB, it has taken years to get organized labor a fair shake at the Board.

But after the NLRB’s first high-profile decision backing unions, the New York Times is concerned. As Steven Greenhouse framed the Boeing ruling in his April 20 story, it is highly unusual for the federal government to seek to reverse a corporate decision as important as the location of plant.”

Greenhouse’s Misuse of Academics

In the space of three days, Greenhouse wrote two major stories about the Boeing ruling that quoted the “outrage” of longtime opponents of unions – including the National Association of Manufacturers, U.S. Chamber of Commerce, and Republican Senator Jim DeMint. But in a classic Greenhouse tactic, he drives his message home through a purportedly “objective observer” – in this case Samuel Estreicher, an NYU labor law professor – to bolster the article’s message that the NLRB is allowing politics to trump the law.

Greenhouse establishes Estreicher’s objective bona fides by noting that the professor rejects charges that the Obama Board’s actions are “out of line” or that the NLRB is “doing something crazy.” Having established that Estreicher is no anti-union ideologue, Greenhouse then quotes the professor criticizing the NLRB’s complaint against Boeing, since “companies vulnerable to strikes – like the 56-day walkout against Boeing in 2008 – should be able to move operations while explaining to employees that strikes hurt profits and production.”

If you think there’s something fishy about an “objective” labor professor who thinks workers should be discouraged from striking – and that the NLRB should reaffirm this message by backing Boeing’s retaliation against workers who have gone on strike – you are correct.

Estreicher is of counsel to Jones Day in their labor and employment and appellate practice groups. Here’s what his firm bio says:

Sam Estreicher’s practice engages a wide range of employment matters, including designing ADR systems, training managers in EEO and labor relations compliance, advising multinational firms on the handling of global benefit plans, labor disputes and staff reductions, and representing companies in EEO and wage-hour class litigation.

That’s right. The single academic chosen by Greenhouse to be the “objective” source on the fairness of the NLRB’s action makes money from advising corporations on the handling of “labor disputes,” which include strikes.

No wonder Estreicher wants the NLRB to discourage Boeing and other corporate workers from striking.

The firm’s website highlights Estreicher’s work on a big victory in 2008 for Bloomingdales:

“Jones Day represented Federated Department Stores, Inc. in a putative class action brought by employees alleging missed meal and rest breaks, failure to pay split shift premiums, failure to pay waiting time penalties, failure to pay for uniform purchase and unfair business practices. Serving as special counsel to enforce national arbitration program. Jones Day enforced the program, thereby disqualifying class representatives, dismissing class allegations, staying action, and sending case to arbitration as an individual case only. Jones Day obtained dismissal of plaintiffs’ writ appeal.”

In 2009, Estreicher also helped win a victory by Macy’s against plaintiff-employees seeking to avoid arbitration in a Title VII case.

It took me about one minute to discover that Estreicher has represented corporations which could have a financial interest in having an NLRB that is not sympathetic to unions. Yet Greenhouse either made no effort to discover this obvious conflict of interest, or did not care.

A Familiar Pattern for Greenhouse and the Times

Last September, I criticized Greenhouse’s use of unidentified “outside experts” to support SEIU-UHW and Kaiser’s arguments that Kaiser workers would lose the benefits of their contracts if they voted to shift representation to NUHW. My article, which also accused Greenhouse of violating Times’ policy on confidential sources, brought a very angry private response from the reporter in which he defended his sourcing as well as his legal interpretation of the legality of the joint SEIU-Kaiser arguments.

But Greenhouse never wrote that shortly after his story the NLRB sought an injunction against Kaiser for illegally withholding a 2% pay increase from the 2,300 Kaiser RNs and Pros who voted overwhelmingly to join NUHW the preceding January – an action that was central to SEIU’s argument that Kaiser workers could lose guaranteed contractual benefits if they voted for NUHW.

Nor, to my knowledge, has Greenhouse acknowledged that the NLRB obtained said injunction, which would raise further questions about his reliance on “outside legal experts” to support SEIU’s false claims that an NUHW victory would jeopardize worker’s existing contractual benefits.

Greenhouse has also run into problems (documented in Steve Early’s The Civil Wars in U.S. Labor), citing academics on issues affecting SEIU whose departments had received financial benefits from the union. He defended these sources on the grounds that he either was unaware of the financial ties, or thought the point the academic made was not controversial.

Fair enough. But Greenhouse and the Times are trying to make the NLRB’s Boeing action controversial, which made it imperative that a labor law expert be relied upon without clear financial ties to corporate employers.

There were hundreds of such experts only a phone call or email away. But Greenhouse chose someone who made the point he wanted made, despite a financial conflict that was not disclosed to readers.

In these tough times for labor unions, it is unfortunate that the Times created a false “controversy” over the NLRB’s Boeing action and then used a biased source to sell it.

Randy Shaw is the author of Beyond the Fields: Cesar Chavez, the UFW and the Struggle for Justice in the 21st Century, as well as The Activist’s Handbook.

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