This is an excellent post from unbossed. Enjoy...

 January 25, Bush announced that he was re-nominating Robert Battista to Chair the NLRB. Battista has to be the worst NLRB chair ever - the worst member ever. Here are a few reasons why.

1. There is the fact that he has presided over a Board that has bulldozed over NLRB precedents that have stood for decades. Believe it or not, that is NOT the way judges and members of Boards and Commissions are supposed to behave. This past year has seen longstanding precedent after precedent shattered and for no valid reason.

Precedent can be changed when there is a valid reason to do so, such as fundamental changes in the workplace. But that change must come only when a record has been created to demonstrates the need for the change and the basis for the type of change. That has not been the case with the Battista gang.

An example several years ago, pre-Battista, was the M.B. Sturgis case. It explored the situation created by the increasing use of contingent workers, such as perma-temps. Old precedent failed to take account of this change. The M.B. Sturgis decision brought Board law into the present by providing a reasoned way to permit them to seek union representation.

That decision was based on a hearing that included inviting amicus briefs on the issues and oral argument - rare in NLRB processes. The briefing and oral argument created a record that amply supported the decision. Four years later the Battista group reversed  Sturgis in Oakwood Care Center and N&W Agency, Inc., 343 NLRB No. 76 (2004), claiming that the old precedent was better because it required that both the temp agency that leased the workers and employer for whom the perma-temps worked to consent to the election unit. Better for keeping unions out, but not better for the workers.

There are other reasons for the Board's validly overturning precedent, but they are never used by the Battista Board.

2. All of the changes have been made to tilt the law against workers. You will hear that charge made against him, and it is certainly true. It is not true of the Board as a whole. Board Members Liebman and Walsh have been strong dissenters.

As Ted Kennedy said:

WASHINGTON, DC—Today, the White House announced the President’s intent to nominate Robert Battista and Gerald Morales to the National Labor Relations Board.

Senator Edward M. Kennedy said, "It’s unbelievable that President Bush would renominate Mr. Battista to the Board, after he led the most anti-worker, anti-labor, anti-union Board in its history.  America’s hard-working men and women deserve a Board that will uphold their rights, not undermine them.  With these nominations, the Administration has again demonstrated its hostility to fairness and justice in the workplace."

3. The pain of reading Battista's decisions has been alleviated only by the frequency with which the federal courts of appeals have been overturning them. That is telling you something. The federal circuit courts have become increasingly conservative due to Bush I and II appointees to the bench and the refusal of Republicans under Clinton to confirm his judicial nominees. If they can't stomach these decisions, that is telling you something. They are not overturning them based on ideology, but on the sheer poor quality of the decision making.

4. But more than that, the guy has got to be the dumbest NLRB member ever. His decisions demonstrate a total lack of understanding of even the most basic principles of legal analysis. That's one reason why they have been reversed.

If you don't believe he could be that bad, take this recent decision reversing him. This was from the 6th Circuit, not the most liberal circuit. The judges could hardly contain their contempt for Battista.

The case is Jolliff v. NLRB, No. 06-2434, (6th Cir. Jan. 22, 2008). Battista wrote the decision holding that an employee who complained about employer practices could be fired. The NLRA make it clear that workers can make common cause with others about working conditions. This protected right can only be lost for very bad behavior. But Battista found it was lost and that the employer was allowed to fire the employee. The 6th Circuit reversed. Unanimously.

Here are some excerpted quotes from the case to give you a sense of the contempt the Sixth Circuit showed for the "quality" of decisionmaking. Bear in mind, that this case  is NOT an anomaly.

Board Chairman Robert Battista wrote the decision for the majority, which held that the employees’ letter-writing was not protected on the grounds that the statement concerning the logbooks was "maliciously false".
. . .
(1) The Board was removed from the witnesses and seemingly gave no weight to the ALJ’s assessment of credibility;

(2) The Board conflated "falsity" with "knowledge of falsity";

(3) Jolliff’s testimony might have been relevant, but it was not as conclusive as the Board’s decision suggests; and

(4) the Board misinterpreted Jolliff’s statements regarding the discipline of management.
. . .
First, the Board did not have the ALJ’s benefit of observing the witnesses’ demeanors. "We will not normally disturb the credibility assessments of the Board or the ALJ, who has observed the demeanor of the witnesses." NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1029 n.5 (6th Cir. 1974). In this case, the Board and this court are equally removed from the evidentiary hearing. The ALJ, who credited the testimony of the employees, was the only fact-finder with the benefit of direct observation. Thus, his determination of the matter is persuasive.

Second, the Board seemed to base its holding of actual malice on its underlying finding of fact that the statement was false. That is, it concluded that because the statement was false, the statement was made with knowledge of its falsity. This is an unwarranted inference.

Third, in determining that the logbooks statement was made with actual malice, the Board focused almost exclusively on the testimony of Jolliff and not of Young, the party who actually made the statement.

Fourth, we note that the Board based its finding of actual malice, in part, on a bizarre reading of a statement made by Jolliff.
. . .
This interpretation of Jolliff’s testimony runs contrary to the most reasonable interpretation of Jolliff’s statement given his more detailed recollection of the conversation on cross-examination.
. . .
Rather, the Board reached its finding of actual malice by supplementing the thin record with unwarranted inferences and misinterpretations of testimony. We do not overturn the Board’s decision lightly. Strong deference must be given to decisions of the Board, lest this court overstep the bounds of its authority. Nevertheless,

we cannot and should not affirm the Board when its decision is based on essential factual findings that are not supported by substantial evidence in the record as a whole.

How embarrassing. Especially since the 6th Circuit encompasses Michigan, Battista's home state.

5.Take Battista's pathetic decision in Brown University.  That is the case involving the question whether Brown grad students were employees as defined by the NLRA and thus protected in choosing to unionize and entitled to have an NLRB election. (Note: This case has been misinterpreted to mean that it is illegal for grad students to organize. That is incorrect for both the Brown students and for grad students in general.)

Battista had no legal or factual ground to stand on in his decision that the Brown grad students were not employees. Bear in mind that the presumption is that a worker is an employee. That means that the burden of proof on this issue fell on the employer to prove the grad students were not employees under the NLRA.

The record demonstrated no such thing, so Battista fell back on bluster to hide the obvious and said that the Brown graduate students were not employees as a matter of policy.

Policy!?  Give me a break!

The law states this decision has to be made on the basis of fact. He had no legal basis for making this decision based on policy.

I wish the unions had called him on it. Instead, they seemed to want to buy what he was selling and use the claim that no grad students anywhere could be employees as more evidence that the NLRB was evil. So instead of limiting the decision to apply only to the Brown graduate students, unions and others took Battista at his word and accepted that the decision applied to all graduate students. They made a very bad decision worse.

6.Add to all of this, the man is one mean guy, a bully, who uses bluster and aggression to cover up his lack of legal scumen.

7.Worse, he is so unpleasant and so ideological that dedicated NLRB attorneys are fleeing the agency, meaning that it will take years to rebuild that workforce and its dedication and knowledge.

That may be even worse for all of us than the bad decisions and decisionmaking.

This man must be brought down.

You can find the announcement, including the nominations of other Board members here.