THE AMERICAN BAR ASSOCIATION
SECTION OF LABOR AND EMPLOYMENT LAW
THE BUSH BOARD
A Panel Discussion On The Bush Board’s Decisions
W. V. Bernie Siebert
Sherman & Howard L.L.C.
633 Seventeenth Street
Denver, CO 80202
A Panel Discussion On The Bush Board’s Decisions’
The attacks on the Bush Board have been loud, strident and continuous. However, the
attacks are without substance. The Bush Board, despite the outcries of organized labor, has been
no more partisan that any of the Boards that preceded it and most certainly is not more partisan
than the Clinton Board. On numerous occasions, the Clinton Board overturned long-standing
precedent and overruled case law. Apparently, the memories of those who criticize the Bush
Board for reversing long-standing precedent, are extremely short.
The attack on the Bush Board while predictable, has taken a dangerous turn. The attack
has spread to the Act itself. Hopefully, the rhetoric is merely an attempt to ratchet up pressure on
the Board to temper its positions on various issues. It would indeed be sad if organized labor
begins to believe its own propaganda and seeks to diminish the stature of the statute that has
served us so well for more than 70 years.
I. The Board
Members of the National Labor Relations Board (hereinafter “NLRB” or “Board”) are
appointed by the President and confirmed by the Senate for staggered terms o f five years each.
The President may appoint only three o f the Members of his own political party to the Board.
The focus of this panel is the discussion of the “Bush Board” as currently comprised of
its Republican Board Chairman Robert Battista, Members Peter Schaumber and Peter Kirsanow
(and previously Ronald Meisburg), and its two Democrat Members, Wilma Liebman and Dennis
Walsh. The views concerning the decisions o f the Bush Board are widely divergent and the
The author wodd like to express his gratitude and appreciation to John S. Irving, Esq., Kirland & Ellis,
Washington, D.C., for allowing generous adoption of’ portions of his paper on the same topic presented at the Mid-
Winter Meeting ofThe Developing Labor Law Comniittee. To the extent anyone alleges plagiarism, I confess.
views concerning their soundness, or lack thereof, are strong. Often times both sides of a
decision on a particular issue will claim that the decision is either a return to long-standing
precedent, or that long-standing precedent has been reversed. The truth lies not in the claims, but
the decisions themselves.
The decisions of either the Republican or Democrat Board are equally accepted and
attacked with passion. However, these attacks, while understandable, are not warranted. It does
seem, however, that the volume level of the criticism has increased substantially since the time
of the Reagan Board. While both management and labor certainly have the right to support or
criticize Board decisions, many of the recent outcries concerning the Board’s decisions are
highly partisan and appear to have the goal in seeking to influence the Board Members and
swaying their decisions. Unfortunately, a further outgrowth of the strident criticism i s the attack
on the Board as an institution and a move to denigrate the Board’s purposes and processes.
However, a historical review will demonstrate that since the establishment of the Board at its
current level of five Members, there has always been criticism of the political nature of the
Board’s decisions. Certainly, the Clinton Board and the Bush Board are no exceptions. These
Boards receive more attention, not based on the substance of their decisions, but rather on the
amount of criticism received by both.
11. Role of Precedent and Stare Decisis
It is often difficult to assess which cases constitute precedent and which cases are merely
a reflection of the policies of the President’s political party which appoints the majority of the
Board Members. Whether the Board is comprised of a majority of Republicans or Democrats,
the decisions of that particular Board are grist for the mill of criticism by the opposing party.
Upon close examination, one can usually find support for either side of a proposition in
the Act. This merely provides additional fodder for the debate as to whether precedent has been
overruled and stare decisis ignored.
It should be kept in mind that Board Members are not Article I11 judges. The fact is that
Board Members’ decisions are political; they are selected for their positions based on the
understanding that their labor philosophy is the same as that of the President who appointed
them. Necessarily then, the decisions of the political appointees reflect that philosophy and are
political in nature.
In the administering of regulatory statutes, it has been fashionable
to recreate so called “independent” agencies such as the NLRB.
One of the connotations is that these agencies are to be free from
political forces. It is evident, however, that these agencies are not
wholly independent, but follow the election returns. New
appointees are chosen because they represent the policy views of
the administration. Summers, Politics Policy Making, and the
NLRB, 6 Syracuse L. Rev. 93,99 (1954-55).
Obviously, Board Members bring their views to the decision making process based on
their life experiences and what they perceive the law to be. The National Labor Relations Act, as
amended (hereinafter the “Act”) contains broad enough language to provide a basis for both
sides of nearly every issue. Consequently, stare I-Eecisis,is the exception, rather than the rule.
111. Appellate Court Review
According to G. Roger King, in his extremely thorough paper titled A Panel Discussion
on the Bush II Board’s Decisions ~ . . and the Yellow Brick Road Back to the Record of the
Clinton B o d , ABA Developing Labor Law Committee, Midwinter Meeting (2006):
Initially, it is interesting to note the number of cases and years of
precedent lost during the Clinton Board era. Sixty cases reversing
precedent and one thousand plus years of precedent lost are high
figures under any standard of analysis. Such high numbers may be
attributable in part to the activist approach taken during such
period by former Board Chaimian William Gould and John
Truesdale and the General Counsel of the Board during such time
period, Fred Finestein. It should be noted however, the precedent
reversal rate from a total number of reported decisions issued
respectively yields of a relatively low percentage reversible rate,
especially when unanimous decisions and crossover decisions are
deducted from the initial universe of precedent reversals.
Correspondingly however, the Clinton Board did not fare
particularly well in the Circuit Courts of Appeal and had
enforcement figures as noted above only average in the sixty
percent range for enforcement in full of its cases and in the seventy
percent to low eighty percent range for enforcement by the Circuit
Courts in whole or in part.
. . . Additionally, the Bush I1 Board has achieved a higher
affirmance rate of its decisions in the Court of Appeals than the
Clinton Board. Indeed, as noted above, the affirmance rate has
been quite high, including in 2005 a 95.9 percent affirmance rate
of Board decisions in whole or in part, one of the highest
affirmance rates of Board decisions in the history of the agency.
Despite the imbalance in the success rate in the Courts of Appeal noted above, both
Republican and Democrat Boards had their successes and difficulties in the various courts.
Courts are far less interested in a particular political outcome than they are with determining
whether the Board decision finds its basis in the statute, is supported by the record and the
decision is fully explained.
IV. Bush Board’s Decisions
Despite arguments to the contrary, it would appear that the Bush Board has attempted to
return to what previously was long-standing precedent and well established Board law. Set forth
below is a cursory analysis of selected decisions of the Bush Board.
A. Bath Ironworks, 345 NLRB No. 33 (2005)
For a number of years, the four unions representing employees at Bath Ironworks
participated in the Company’s pension plan. During bargaining with the several unions at Bath
Ironworks, the Company had always negotiated only with respect to the Company pension plan.
The pension plan was referenced in at least three of the collective bargaining agreements. In
1997, the Company negotiated new collective bargaining agreements with three of the unions.
The pension plan language in the various agreements remained unchanged. In 1998, during
negotiations with the fourth union, the Company made a statement to the union that it was
considering merging its pension plan into the pension plan of its parent Corporation. When the
unions requested bargaining, the Company responded that bargaining at that time would be
premature. In 1998, after receiving permission from the Government and its parent Corporation
to merge the pension plan, the Company discussed the merger with the various unions, but no
agreement was reached. Later in 1998, the Company unilaterally, and without further
bargaining, merged its pension plan into that of its parent Corporation. Charges were filed by
three of the unions claiming that the Company failed to bargain over the merging of the pension
plans and that by doing so, the Company engaged in a unilateral modification of the collective
bargaining agreements and had failed to bargain.
The administrative law judge found that the merger was a mandatory subject of
bargaining, the Company had modified the collective bargaining agreements without the unions’
consent, the pension plan language of the collective bargaining agreements did not give the
Company the authority to modify the plan, and the unions had not clearly and unmistakably
waived their right to bargain the issue. Therefore, the Company had in fact violated Section 8(d)
and 8(a)(5) of the Act. On review, the Board majority reversed the decision of the administrative
law judge and dismissed the Complaint.
According to the Board majority, the issue in Bath Ironworks is the appropriate standard
to apply in analyzing an allegation of 8(d) contract modification. The test to be applied was not
that of “unilateral change”, but rather that of “contract modification”. The test for contract
modification is whether there is a ‘‘sound arguable basis” for the contract interpretation. The
unilateral change test of “clear and unmistakable waiver” is not applicable in a contract
modification case. The majority distinguishes Trojan Yacht, 319 NLRB 741 (1995), as that case
was a failure to bargain case, not a contract modification case. The majority relies on NCR
Corp., 271 NLRB 1212 (1984) and its progeny in support of its contract modification analysis.
According to the majority, “. . . a unilateral change is a failure to bargain about a subject, while a
contract modification is a failure to adhere to the contract.”
Dissenting Member Liebman asserts that the majority failed to follow long-standing
Board precedent and had applied the wrong test. Member Liebman also criticizes the majority’s
narrow reading of the Complaint and argues that there was a missed opportunity to resolve the
“competing analytical approaches, coupled with judicial’s disagreements [that] had made it
difficult to determine when and how the Board will decide whether an employer’s unilateral
action violates the Act’s duty to bargain.” Member Liebman’s reference is to the dispute
between the Board and several Circuits, most notably the D.C. Circuit over whether the test to be
applied in unilateral change cases was the “clear and unmistakable waiver” test or the “covered
by”, or “contained in”, the contract test. Several of the Circuits have determined that in deciding
unilateral change cases, the Board need only look to whether the issue that was the subject of the
claim was one that was “covered by” or “contained in” the parties’ collective bargaining
The “clear and unmistakable” waiver test had its genesis in Metropolitan Edison Co. v.
NLRB, 460 U.S. 693 (1983). In that case, the employer argued that it could impose greater
discipline on union officers who had engaged in a legal strike because the union had waived
statutory protections. The Court stated “to waive a statutory right the duty must be established
clearly and unmistakably.” at 709. However, the Court further stated “assessing the clarity with
which a party’s duties have been defined of course will require consideration of the specific
circumstances of each case.” at 709.
Bath Ironworks was not a departure from long-standing precedent. Rather, to the
contrary, Bath Ironworks relied on and is supported by long-standing Board precedent. Those
who criticize the decision do so because the quantum of proof necessary to demonstrate a “sound
arguable basis’’ is far less than a showing of “clear and unmistakable waiver.”
B. Brevard Achievement Center, Inc., 342 NLRB No. 101 (2004)
Brevard Achievement Center was a non-profit entity established to assist adults with
severe disabilities and help those persons in becoming independent members of the community
through training, education and rehabilitation. Brevard provided employment and rehabilitation
opportunities pursuant to a custodial contract with the Federal government requiring that
seventy-five percent of the direct labor hours be performed by individuals such as those of
Brevard Achievement Center. Most of the work was custodial work and the disabled were
permitted to work at their own pace. When the issue arose as to the employee status of the
disabled individuals, the Board majority of Chairman Battista and Members Schaumber and
Meisburg, held that the individuals were not “employees” within the meaning of Section 2(3) of
the Act. According to the majority, the relationship between the individuals and their employer
was based primarily on rehabilitation, and not economic or business considerations. There was
no “typical industrial” relationship between the parties. In so ruling, the majority relied on a
series of long-standing Board and court cases recognizing the dichotomy between “typically
industrial?’and “primarily rehabilitative”.
The dissenters, Members Liebman and Walsh criticized the majority’s rigid adherence to
the Board’s “typical industrial-primarily rehabilitative” analysis, a policy-based approach that
the Board has used to rewrite the plain language of the Act . . ., “ relegating the disabled
custodial employees here and “many others like them into second class status.” According to the
dissenters, “the majority’s decision ignores the plain language of the Act, invades the legislative
arena, and contravenes contemporary Federal policy.” 342 NLRB at “13.
It would seem in Brevard Achievement Center, Inc., it is the dissent that seeks to overturn
long-standing Board precedent. Moreover, the dissenters criticize the majority for its adherence
to long-standing precedent and its reluctance to overrule it.
The Board majority merely applied the statute, as rationally interpreted by long-standing
case law. The dissenters want to alter the statute, a function reserved to Congress.
C. Bunting Bearings Corp., 343 NLRB No. 64 (2004)
After reaching a bargaining impasse, the employer elected to impose a lockout as an
attempt to persuade the union to accept the employer’s bargaining position. However, in
imposing the lockout, the employer locked out non-probationary employees, but not
probationary employees. Although both groups were part of the bargaining unit, non-
probationary employees were union members which probationary employees were not. As such,
non-probationary employees voted on the employer’s final offer, but probationary employees
were not permitted to vote. As with most collective bargaining agreements, the then expired
contract granted only limited rights to probationary employees while denying them any seniority
rights, disciplinary protections or any protections regarding layoffs, recalls, vacancies and shift
preferences. The union representing the employees filed charges claiming that the lockout was
unlawful in that it discriminated against the non-probationary employees based on their union
The Board majority held that the lockout, which was characterized as a “partiaI lockout”,
was lawful as it had not been proven that the lockout was based on union membership.
According to the majority, there were substantial differcnces between the two groups based on
the employer’s greater flexibility and “the difference in their economic interests.” Based on
these differences, the Board held that the business justification for the partial lockout, the
flexibility needed by the employer to operate its business, provided a sound basis for holding the
lockout lawful. The Board majority relied on Harter Equipment, 280 NLRB 597 (1986) which
held that a lockout “in support of a legitimate position is ‘prima facie lawful’”.
Member Liebman dissented based on her belief that the partial lockout was based on
union membership and therefore was “inherently destructive” of Section VI1 rights. In addition
to doubting the claimed basis of flexibility to operate its plant, Member Liebman also did not
believe that the probationary employees were exempted from the lockout because they had fewer
contractual rights and less of a “vital interest” in the contract. In support of her arguments,
Member Liebman cited to American ShipbuiZding where the Court had approved of lockouts for
the purpose of applying economic pressure, but condemning lockouts intended to “discourage
union membership or otherwise discriminate against union members as such.”
The Board majority relied on the long-standing business justification rationale for the
partial lockout. In doing so, the Board majority relied on long-standing Board precedent.
D. Midwest Generation, EME LLC, 343 NLRB No. 12 (2004)
In an additional lockout case, the Board majority, Battista and Schaumber, held that the
employer did not violate the Act by locking out returning strikers, but not those who had elected
to work during the course of the strike. Board majority relied on American Shipbuilding v.
NLRB, 380 U.S. 300 (1965) for the proposition that a partial lockout motivated by legitimate
business considerations does not violate the Act.
The dissent relied on the notion that such a lockout was “inherently destructive” of
Section VI1 rights relying on Great Dane Trailer v. NLRB, 388 U S . 26 (1967). Late last year,
the U.S. Court of Appeals for the Seventh Circuit adopted the view of the dissent and reversed
the Board. Local 15, IBEW v. NLRB, 429 F.3d 651 (7th Cir. 2005). The Court held that there
was no reasonable basis to claim the lockout was based on any legitimate business justification.
Additionally, by acting “only against those who had exercised their Section VI1 right to strike,”
an anti-union animus by the employer was apparent. The Court stated that nothing less that an
indispensable need to operate would justify the lockout of employees without regard to seniority
or other criteria.
E. Crown Bolt, 343 NLRB No. 86 (2004)
An earlier Board case, Springs Industries, 332 NLRB 40 (2000) had reversed long-
standing precedent and held that in the case of a pre-election threat of plant closure,
dissemination of the threat was to be presumed. In Crown Bolt, the Board majority overruled
Springs Industries, and returned to the requirement set forth in Kukomo Tube Co., 280 NLRB
357 (1986), that there be evidence of the dissemination before an election would be overturned.
According to the majority, confusion had been created when Kukomo Tube did not specifically
overrule General Stencils, Inc., 195 NLRB 1109 (1972) and Coach & Equipment Sales Corp.,
228 NLRB 440 (1977) both of which “presumed” dissemination of a threat. Therefore, there
was viable case law support for either proposition. The Board ruled that Springs Industries was
contrary to the notion that the party who seeks to change the “present state o f affairs” bears the
burden of proving such, the decision created broader application of the presumption of
dissemination than was proper, and that the presumption was unnecessary as direct proof of
dissemination is not difficult to obtain. The dissenters argued that Spring Industries should not
be overturned and that such a serious threat as plant closure should be presumed. According to
the dissenters, they in fact relied on long-standing Board precedent that the dissemination of a
plant closure threat is “all but inevitable.” General Stencils, Inc. , 195 NLRB 1 109, 1 1 I O (1972),
enJ: denied 472 F.2d. 170 (2ndCir. 1972) and even earlier cases. Crown Bolt is a perfect example
of how either side can find support for its position in both the Act as well as prior Board
decisions. It is not an example of the overruling of long-standing precedent as there was long-
standing precedent to support both arguments. Rather, the decision was an attempt to bring
clarity to an area of confusion.
F. Harborside Healthcare, Inc. v. NLRB, 230 F.3d 206 (2000) and Harborside
Healthcare, Inc., 343 NLRB No. 100 (2004)
On remand from the Sixth Circuit, the Board majority held that it was not necessary to
show an explicit promise of benefit or threat of reprisal to set aside a Board election for pro-
union conduct on the part of a supervisor. By so ruling, the Board majority returned to earlier
established precedent that held that solicitation of authorization cards by a supervisor was
inherently coercive in the absence of any mitigating circumstances. A two-factor standard was
adopted by the Board majority to determine if an election should be set aside due to supervisor’s
(1) Whether the supervisor’s pro-union conduct reasonably
intended to coerce or interfere with the employee’s exercise of free
choice in an election. This inquiry includes (a) consideration of
the nature and degree of supervisory authority possessed by those
who engage in the pro-union conduct; and (b) an examination of
the nature, extent, and context of the conduct in question.
(2) Whether the conduct interfered with freedom of choice to
the extent that it materially affected the outcome of the election,
based on factors such as (a) the margin of victory in the election;
(b) whether the conduct at issue was wide spread or isolated; (c)
the timing of the conduct; (d) the extent to which the conduct
became known; and (e) the lingering affect of the conduct.
The dissent argues that the requirement that there be a finding of an explicit supervisory
threat or promise to overturn an election was supported by Board precedent. According to the
dissenters, “SO long as a supervisor is engaged in persuasion, as opposed to coercion. his conduct
The arguments in this case are similar to those examined by the Board in determining
whether threats of violence are protected concerted activity if they were unaccompanied by any
overt acts. After a number of reversals in the Courts of Appeal, the Board finally adopted the
view that overt acts in conjunction with verbal threats was not required. Clear Pine Moldings,
268 NLRB 1044 (1984).
It is obvious that solicitation of authorization cards by supervisors is inherently coercive.
A determination by the Board’s majority that pro-union activities of a supervisor may be
coercive without overt threats or promises supported by Board precedent, as well as policy
G. ZBM, 341 NLRB No. 148 (2004)
IBM represents the latest view of a Board concerning whether an unrepresented employee
should be permitted a co-worker or witness when that employee is summoned to an investigatory
interview that the employee reasonably believes could result in discipline. This concept has been
the subject of much political ping pong. Prior to NLRB v. J. Weingarten, 420 U.S. 251 (1975)
the right to co-worker or witness did not even apply to represented employees. Thereafter, in
Materials Research Corp., 362 NLRB 101 (1982) the Board extended the right to non-
represented employees. In Sears Roebuck & Co., 274 NLRB 230 ( 1 985) and E.I. Dupont & Co.,
289 NLRB 627 (1988) the Board returned to the view that non-represented employees had no
right to a co-worker or witness to any investigatory interview. However, in Epilepsy
Foundation, 331 NLRB 676 (ZOOO), the Board again reversed itself and ruled that non-
represented employees were permitted a co-worker or witness at the investigatory interview.
Not surprisingly, the Board majority claimed reliance on long-standing Board precedent.
However, in IBM, the Board majority premised its conclusion on policy grounds while
acknowledging that the contrary result was also supported by the Act.
The dissenters noted that by virtue of decision, the “overwhelming majority of employees
are stripped of a right integral to workplace democracy.” The dissenters further noted that the
earlier position of permitting representation “is in perfect step with the times”. Finally, the
dissenters claimed that the EpiZepsy policy should be maintained as it had been affirmed by the
D.C. Circuit. See Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir.
It would seem that the concept will again probably change when a new Board majority is
established. While the arguments on either side of the issue are based on a reading of the Act,
the decisions appear to be political in nature.
H. Martin Luther Memorial Home, 343 NLRB No. 75 (2004)
The question of whether employer work rules interfere with employee’s Section VI1
rights are frequent. Employers argue that rules which ban harassment, profanity and abusive
language have the legitimate goals of promoting workplace civility as well as providing some
defense to state and federal claims that the employer failed to maintain a workplace free of
racial, sexual and other harassment. In Martin Luther Memoria’ Home, the employer had rules
that prohibited such things as profane or abusive language. Finding that the rules did not violate
the Act, the Board majority stated that it would look to the circumstances of each case, including
the type of behavior and the enforcement of the rule and that there should not be a presumption
that any rule is unlawful. Moreover, the majority stated that it would not find a rule unlawful
simply because it could be interpreted to restrict Section VI1 rights. The dissenters took the
position that if a rule was ambiguous and could not clearly be reasonably understood, it could
prohibit protected activities relying on Lufayette Park Hotel, 326 NLRB 824 ( 1998), enfd. 203
F.3d 52 (D.C. Cir. 1999). The dissenters rejected the analysis of the D.C. Circuit in Adtrwzz Abb
Daimler-Ben: Trmspovtation, R.A., Inc v. NLRR, 253 F.3d 19 (D.C. Cir. 2001). Rather,
dissenters believed that employers should be required to add to their general rules of conduct a
statement that the prohibitions contained should not apply to conduct that is protected by the Act.
I. H.S. Care, d/b/a Oakwood Care Center, 343 NLRB No. 76 (2004)
In 2000, the Board issued its divided opinion in M.B. Sturgis, 33 1 NLRB 1298 (2000). In
that case, the Board majority held that temporary workers currently employed by suppliers of the
workers and their employer customers be included, even accreted in bargaining units previously
comprised solely of customer employer’s employees. Oakwood Care reversed the holding of
Sturgis and returned to the long-standing precedent of Greenhoot, Inc., 205 NLRB 250 (1973)
and Lee Hospital, 300 NLRB 947 (1990).
The Board majority held that forced multi-employer bargaining which had not been
agreed to by the parties, a redefinition of the tern “employer” as set forth in the Act, and the
unworkable bargaining relationships that came as a consequence of the Sturgrs decision, were
contrary to sound public policy. According to the Board majority, it was simply impractical to
force two employers, each of which controlled different aspects o f the employer relationship, to
bargain together. While the Sturgis decision may have served to expand union organizing
activities, the decision ignored statutory mandates, as well as common sense.
The dissenters argued that although the Sturgis decision was a departure from precedent
and that it was necessary for the Board to adjust to the changing workplace. The attack on the
majority was not phrased in subtle terms. “The majority is mistaken in every critical respect . . . .
It’s approach, moreover, will hasten obsolescence of this statute.” The dissenters went on to
state, ‘‘If the majority were correct, then the National Labor Relations Act itself could not
guarantee an important, and growing, segment of American workers the rizht to collective
bargaining. The problem here, however, is not the statute, but the agency that administers it.”
J. Brown University, 342 NLRB No. 42 (2004)
The question of whether graduate students should be considered employees for purposes
of the Act was revisited in Brown University. The case overruled the Board’s decision in New
York University, 332 NLRB 1205 (2000) which held that graduate students are employees for the
purposes of the Act.
It was in 1972 that the Board first addressed the issue of graduate student assistants in
Adelphi University, 195 NLRB 639 (1972). In that case, the Board held that graduate students
should not be included in a bargaining unit of regular faculty. Only two years later, in Leland
Stanford Junior University, 214 NLRB 621 (1974), the Board further refined its earlier holding
by ruling that graduate students were primarily students, and not employees under the Act. The
relationship between graduate student assistants and their university was ruled to be more
“academic” than “economic”.
The decision in Brown University was clearly a return to long-standing Board precedent.
However, there were also strong policy reasons why graduate student assistants should not be
considered employees within the meaning of the Act.
The Board majority acknowledged that “principles developed for use in the industrial
setting cannot be ‘imposed blindly on the academic world.”’ The Board majority noted that in
section One of the Act, Congress had determined that strikes were a result of the inequality of
bargaining power. Accordingly, the Act was “premised on the view that there is a fundamental
conflict between the interests of the employers and employees engaged in collective-bargaining
under its auspices and that ‘[tlhe parties . . . proceed from the contrary and to an extent
antagonistic viewpoints in concepts of self-interests.”’ The Board majority further argued that
when determining employee status, policies which underlie the Act must be considered.
Graduate students simply do not fit the purposes of the Act. The Act does not protect
relationships that are primarily educational. Rather, the Act protects unequal economic
relationships. To find that graduate students are employees, and not students, would clearly
create a risk that collective bargaining would be detrimental to the educational process. Because
the educational process is a particularly personal one, it is inapposite to the goal of collective
The dissenters abandoned their normal argument of a reversal of long-standing precedent
and instead claimed that the majority was out of touch with “contemporary academic reality.”
Moreover, the decision of the majority “disregards the plain language of the statute.” According
to the dissenters, collective bargaining in the educational setting is suitable for resolving such
issues as stipends, job postings, pay periods, discipline and discharge, health insurance and other
Brown University may well be a harbinger for what is to come with respect to residents
K. San Manuel Indian Bingo & Casino, 341 NLRB No. 138 (2004)
For a number of years, the Board had resisted asserting jurisdiction over a commercial
enterprise that was owned and operated by an Indian tribe on the Tribe’s reservations.
Previously, in Fort Apache, 226 NLRB 50-3 (1 976) and Southern Indian, 290 NLRB 436 (1 988),
the Board had refused to assert jurisdiction in such cases. In now deciding to assert jurisdiction
over an Indian casino on the Tribe’s remvation, the Board formulated a new standard for
determining when the Board would assert iitrisdiction over similar enterprises. The Board stated:
[Sltatutes of general appliLability should not be applied to the
conduct of Indian tribes if: i I ) the law “touches exclusive rights of
self-govemment in purely 11 tramiiral matters”; (2) the application
of the law would abrogate ’1-eatyrights; or (3) there is “proof’ in
the statutory language or legislative history that Congress did not
intend the law to apply to Indian tribes.
Citing Coeur d 'Nene, 75 1 F.2d 11 13, 1 115 (gthCir. 1985). In this case, the Board majority ruled
that asserting jurisdiction would not impact Federal Indian policy, would not impact any treaty
rights and there was nothing in the Act or its legislative history that demonstrated that Congress
intended to exclude Indians from the jurisdiction of the Board. Member Schaumber dissented
arguing that the sole issue was whether Congress had authorized the Board to assert jurisdiction
over a commercial enterprise owned and operated by an Indian tribe located on the Tribe's
reservation. In his view, it was not within the province of the Board in this circumstance to
decide whether to assert jurisdiction. Rather, according to Member Schaumber, Congress should
decide the issue. Finally, Member Schaumber argued that asserting jurisdiction would impair the
sovereign rights of the Tribe.
The attacks on the Bush Board are not warranted; the attacks are without merit. The
Bush Board has overruled decisions of the Clinton Board which had departed from long-standing
The attacks on the Bush Board, while louder and more vociferous if applied only to the
decisions and not the institution, are nothing more than the normal political rhetoric.