By the union’s reck­on­ing, a favor­able deci­sion from Hor­ton on the sev­en dis­put­ed votes would result in a tie, trig­ger­ing a re-run of the elec­tion. Instead, Hor­ton deter­mined that two cru­cial pro-union votes should not be count­ed — effec­tive­ly deal­ing an elec­tion defeat to the pro-union workers.

Hear­ing offi­cer Chad M. Horton’s report was crit­i­cal to the dri­ve by the Screen Actors Guild-Amer­i­can Fed­er­a­tion of Tele­vi­sion and Radio Artists (SAG-AFTRA) because the result of a July 30 elec­tion was so close. A pre­lim­i­nary count showed the union, which has a sig­nif­i­cant mem­ber­ship base in the pub­lic radio sec­tor, los­ing by a vote of 9 – 11, but sev­en votes were not count­ed due to legal chal­lenges from lawyers on both sides of the labor-man­age­ment divide — includ­ing attor­neys from the union-bust­ing firm Jack­son Lewis .

BAL­TI­MORE – Union sup­port­ers at pub­lic radio sta­tion WYPR had their hopes crushed last week when a hear­ing offi­cer for the Nation­al Labor Rela­tions Board (NLRB) rec­om­mend­ed against count­ing all the votes in a close­ly con­test­ed elec­tion held ear­li­er this year. The Octo­ber 31 rec­om­men­da­tion almost cer­tain­ly means the union will lose the elec­tion when the NLRB issues its final deter­mi­na­tion in the com­ing weeks, and leaves lit­tle hope that the orga­niz­ing dri­ve can go forward.

“This is a dis­ap­point­ing con­clu­sion that reflects an imper­fect process” by the NLRB and the man­agers of the radio sta­tion, accord­ing to a state­ment from the WYPR Orga­niz­ing Com­mit­tee. ​“A major­i­ty of the full-time reg­u­lar pro­duc­tion and news staff still believe that our work­place and work prod­uct would be improved by col­lec­tive bar­gain­ing. … We are dis­heart­ened by man­age­men­t’s deci­sion to spend sig­nif­i­cant sta­tion resources to under­mine our demo­c­ra­t­ic effort. We hope they will com­mit as ful­ly to mak­ing mea­sur­able improve­ments to the work­place and sup­port­ing the pro­duc­tion staff.”

The state­ment also includ­ed lan­guage that the com­mit­tee would make no fur­ther com­ments on the case, and point­ed­ly omit­ted any ref­er­ence to legal appeals or any fur­ther union orga­niz­ing activity.

The work­ers’ ref­er­ence to under­min­ing ​“our demo­c­ra­t­ic effort” reflects a deci­sion ear­ly this sum­mer by the sta­tion man­agers to aggres­sive­ly fight the union, espe­cial­ly by hir­ing the anti-union law firm Jack­son Lewis to bat­tle the SAG-AFTRA effort.

Jack­son Lewis lawyer Lau­ra Pier­son-Schein­berg argued in front of the NLRB for the exclu­sion of the two pro-union votes, con­tend­ing that the two indi­vid­u­als should be con­sid­ered sta­tion super­vi­sors and there­fore inel­i­gi­ble under labor law to vote in the elec­tion. Despite counter-argu­ments from the union, NLRB hear­ing offi­cer Hor­ton sided with Pierson-Scheinberg.

Pri­or to the Hal­loween report from Hor­ton, lawyers for both sides had agreed to with­draw chal­lenges to four of the oth­er con­test­ed bal­lots, and to dis­card the fifth. One legal source told In These Times that both sides rec­og­nized that the four bal­lots were split even­ly between pro-union and anti-union votes, and would thus can­cel each oth­er out.

Jonathan Rogers, Chair of the WYPR Board of Direc­tors and an exec­u­tive of Mer­rill Lynch, the stock bro­ker­age unit of Bank of Amer­i­ca, told In These Times that the board had approved the hir­ing of Jack­son Lewis but denied it was an attempt to defeat the union.

“We felt it was in the best inter­est of the sta­tion to ensure that the con­cerns of the orga­ni­za­tion were heard,” in the course of the NLRB process, Rogers says. Asked whether he was opposed to rec­og­niz­ing the union, Rogers replied, ​“My per­son­al feel­ings are irrelevant.”

Marc Stein­er dis­agrees. A for­mer WYPR exec­u­tive who now hosts a pro­gram for a com­pet­ing radio sta­tion in the Bal­ti­more mar­ket, Stein­er was oust­ed from the sta­tion in 2008 after a show­down with cur­rent WYPR Pres­i­dent Antho­ny Bran­don over con­trol at the sta­tion. He coun­ters that the per­son­al feel­ings of the board mem­bers are very relevant.

“The Board is made up of cor­po­rate exec­u­tives and wealthy peo­ple, most of whom do not under­stand pub­lic radio,” Stein­er says. ​“It is real­ly run, or at least it was when I was there, more like a com­mer­cial station.”

Stein­er says that WYPR work­ers he has spo­ken with want­ed a union in part ​“to ensure a fire­wall between those cor­po­rate inter­ests and pro­gram­ming. Unless things have changed [since I worked there], pro­gram­ming is under con­stant pres­sure to mold what is heard on the air­waves to inter­ests of under­writ­ers.” He also reports hear­ing con­sis­tent com­plaints about heavy-hand­ed man­age­ment tech­niques and sub­stan­dard pay lev­els — many com­plaints revolve around Brandon’s per­ceived auto­crat­ic style of management.

“I’m cer­tain­ly sym­pa­thet­ic to their desire for a union,” Stein­er says. ​“I’d be in favor if I was an employ­ee over there.”