Private: The Future of the National Labor Relations Act?

by Ellen Dannin. She is the author of  Taking Back the Workers’ Law - How to Fight the Assault on Labor Rights (Cornell University Press) and the Fannie Weiss Distinguished Faculty Scholar and Professor of Law at Penn State Dickinson School of Law.

Through the decades, many proposals have been made to replace, repeal, or amend the National Labor Relations Act. Most have foundered for good reason. Amending the NLRA requires applying the precautionary principle – first, do no harm. 

In the case of the NLRA, proposed amendments should be justified by showing that a change will promote the NLRA’s purposes and policies. The ultimate policy is to restore equality of bargaining power between employers and employees by “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”  The basic goal was to balance the power corporation and partnership law gave employers to become collective with a law that gave employees the right to take collective action to improve working conditions.

The standard to measure the value of proposals to change the NLRA is not whether the change would increase the number of union members – although that certainly matters. It is whether the change would increase employee bargaining power. The purpose of increasing employee bargaining power was to improve the quality of work, and, ultimately, promote a fairer, more prosperous, more democratic society.

Congress was impelled to pass the NLRA because the increase in power employers had, as a result of corporation and partnership laws, so skewed power toward employers that wages and working conditions had spiraled down and led to economic collapse.

We have seen similar dynamics during the Great Recession with attacks on employee working conditions, and especially attacks on public sector employee wages and benefits – as well as through privatization. The ferocity of those attacks in recent years and the low percentage of union members raise concerns that the spiraling down of working conditions will lead to economic disaster. Desperate times seem to call for desperate measures.

However, these days, most people have little to no first-hand knowledge of how the National Labor Relations Board operates or of the purpose of the law. Here, then, is a brief NLRA / NLRB primer.

The NLRB has two main functions – holding secret-ballot elections for employees to decide whether they want to be represented by a union and investigating and prosecuting charges that employee NLRA rights have been violated.

NLRB Elections

The NLRB election process for union representation can lead to a secret-ballot election at work, complete with voting booths and ballot boxes. Elections are overseen by an NLRB agent. In other words, an agent of the federal government is present to protect the right of employees to choose union representation within a space where the employer and union are not present while the balloting goes on.  As one NLRB brochure says, “Your government conducts an election for you – on the job.”

These elections are full of drama and are an exercise of direct democracy, complete with poll watchers, voter lists, voting booths, and ballot boxes. There is an electric buzz in the atmosphere, especially during the count. Elections can also be moments of worker empowerment. They are at their workplace, but, for once, the employer cannot come into this space or the area around it.

Ensuring that the election process continues to promote the NLRA’s policies can also be problematic.

For example, in 2011, the NLRB proposed changing its regulations to shorten the time it takes to hold an election. However, the legal right of the NLRB to propose new regulations through rule-making has been challenged and therefor the proposed regulations have not come into force.

For the most part, the proposed rule changes would have been uncontroversial in most contexts. The regulations would have streamlined elections and cut down on the time to make decisions, by, for example, using e-mail, rather than relying solely on physical mail to distribute documents. [Why the Amendments to the NLRB’s Proposed Election Regulations Should Be Approved]

However, every change and every action affecting the NLRA is scrutinized for its effect on the balance of power between employees and employers. The longer it takes to get to an election, the more likely it is that unions will lose. As a result, employers who, no doubt, regularly use email, websites, and other electronic media have opposed the regulations that would have permitted their use in NLRB elections.

In recent years, unions have attempted to replace NLRB elections with “card check” – that is, making a majority of union membership cards signed a basis for certifying a union as employees’ representative. That process has long been available, but only if an employer agreed to use it. Proposed legislation would have made union representation based on a card check mandatory.  However, despite changing messaging and citing studies to support the use of cards to show employee desires, unions had little success with card check.

If elections present a difficult – or almost impossible – barrier to union representation and if no other alternatives present themselves, what will become of union representation and voice?

The most important solution may be to seek guidance from the period when the NLRA was being debated by Congress. The NLRA’s legislative history includes many stories and speeches that make stirring and inspiring reading – amidst draft after draft of what would become the NLRA. 

Employers then were certainly strongly opposed to unions and more than willing to use muscle to crush organizing. Yet, despite that opposition, workers persisted in agitating for democratic rights and bargaining power. Their language and vision drew strength from their vision of themselves as citizens of a democracy. Indeed a number of the congressional representatives who debated and voted on the NLRA had been union officials.

The Great Recession has offered flashes of similar actions, ideas, and commitment. They may make delaying an election by days or even weeks irrelevant. Put another way, these are not short term struggles. If a few days or weeks makes the difference in a yes or a no vote, then there may be trouble ahead in negotiations. To hang in over the long term, workers must see themselves as having rights as citizens of a democracy to co-determine their working conditions.

In short, to survive the bloody battlefield that employers have created, unions – and employees – must have the strength to withstand the engagement.

Unfair Labor Practices and the Role of Litigation in Promoting NLRA Rights

The NLRA is a civil – not criminal – law. However, NLRB unfair labor practice procedure and substance are similar to those of a state or federal criminal prosecutor responding to an allegation that a crime has been committed.

When a charge is filed, claiming that the NLRA has been violated, the NLRB Regional Office for that area investigates and assesses the merits of the charge. Investigations, on average, now take roughly 80 days. During that time, the agent assigned to the case takes affidavits from witnesses, collects other evidence, and analyzes whether the evidence shows reasonable cause to believe that an unfair labor practice has been committed.

Employer unfair labor practices fall into five categories – (1) threats, bribes, or other actions that interfere with employees’ rights to make common cause with one another or exercise their NLRA rights – whether there is a union in the picture or not; (2) employer domination (popularly known as a “company union”) or assistance to a  union; (3) firing or disciplining an employee for supporting a union; (4) retaliation, such as firing or disciplining an employee, for filing an NLRB charge or testifying in an NLRB proceeding; and (5) refusing to bargain with the union that represents the employer’s employees. In some instances, cases can involve several – or even all – of these violations. [National Labor Relations Act]

Most people would be shocked to learn that they have been victims of an unfair labor practice. But one of the most common violations – an employer’s telling its employees not to discuss their pay or benefits – is almost never prosecuted, because most people are not aware that their employer has violated NLRA § 8(a)(1).

Even when people learn that their rights have been violated, it may seem too trivial to complain. However, this basic action of talking about working conditions with other employees is a first step to seeing the advantage of making common cause with co-workers to improve their working conditions. Taking that first step to collective action is necessary if the basic goal of the NLRA – equality of bargaining power between employers (who are organized in a collective form) and employees – is to be achieved.

The second most misunderstood part of NLRA protections is that the right of making common cause with other employees extends across employers. The NLRA defines who is an employee as “any employee” and not limited to employees of a particular employer.

Making common cause with other employees – inside or outside the boundaries of one employer – is protected concerted activity.

Employees and unions need to reclaim this territory by being strategic in their use of unfair labor practices.

Unfortunately, some denigrate the value of charges that only result in a cease and desist order and a notice posting. However, an employer that has been sanctioned with a cease and desist order may find itself in contempt if it violates that order. And employers do not regard NLRB notices as just a piece of paper. If they did, they would not resist posting them.

If unions want stronger remedies, they must present evidence that makes the case that stronger remedies will promote the purposes and policies of the NLRA. They can and should borrow the strategies used by the NAACP and the NAACP Legal Defense Fund to expand civil rights.

Here is a basic outline of NLRB unfair labor practice processes. According to the NLRB’s most recent report, in FY2011, 22,177 unfair labor practice charges were filed, down quite a bit from pre-recession years. Over the last 40 years, between 32-40% of charges have been found to show reasonable cause to believe the NLRA has been violated. Once the Region makes such a finding, it attempts to settle the case. In FY2011, NLRB Regional Offices settled 6246 (93%) of unfair labor practice cases. [Office of the NLRB General Counsel, Summary of Operations (Fiscal Year 2011) Memorandum GC 12-03 March 8, 2012]

If no settlement is reached, an NLRB attorney is assigned to try the case before an NLRB Administrative Law Judge. Both are experts in NLRA law and procedure. There is no cost at any point to a charging party, and, while charging parties can hire private lawyers if they wish, all cases are prosecuted by NLRB attorneys. The NLRB handles all appeals including through the Supreme Court.

Of the cases decided after a trial in the most recent fiscal year, NLRB Regional Offices won 87 percent of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part and recovered $60,514,922 for employees, and 1,644 employees were offered reinstatement.

Would Other Models for Protecting Employee Rights Be Superior to NLRB Processes?

People may be more familiar with the law and process of the Equal Employment Opportunity Commission (EEOC), a much larger agency with a different model for handling claims of illegal discrimination. In FY2011, 99,947 charges were filed with the EEOC, and it secured more than $294.2 million in monetary and other benefits for more than 17,491 people.

Unlike the NLRB, most EEO cases are not tried by EEOC attorneys. The EEOC allows most of its cases to be tried by non-EEOC attorneys and intervenes only in select cases. As a result, EEOC charging parties must find an attorney to try the case. This system creates a challenge for people who have no experience with lawsuits and judging the qualifications of an attorney to handle an EEO case.

In contrast, the NLRB retains tight control over cases and how the NLRA is interpreted and applied by having all NLRA cases tried by NLRB attorneys before NLRB Administrative Law Judges. The agency keeps this control to ensure that employees’ NLRA rights are protected.

Restoring Union Power

Building union power requires developing broad public awareness of the NLRA’s enforcement of employee rights, union power, and democratic citizenship. It also requires locating and understanding the points at which the NLRA has been attacked and weakened.

The greatest assault on the law has been caused by judicial “interpretations” that have weakened NLRA rights and protections by “rewriting” the law Congress enacted. The law as written remains the same, but the judicial “amendments” control how the NLRA operates. Although there has been nothing subtle about the courts’ assault on the NLRA, few people are aware of the extent to which courts have judicially repealed the law that Congress enacted.  In fact, all workplace laws have been the target of similar judicial amendments.

It is difficult to say which are the most pernicious rewrites of the NLRA, but here are a few examples.

The most commonly violated language in the NLRA, as written, is the NLRA’s statement in § 10(c) that remedies must promote the NLRA’s purposes. In 1938, when the ink on the NLRA was barely dry, the conservative members of the Supreme Court’s held in Consolidated Edison that NLRA remedies could not punish an employer that had violated the NLRA.  [Hoffman Plastics as Labor Law – Equality at Last for Immigrant Workers?] This amendment, that requires not punishing the party that has been found to have violated the law, makes it impossible to impose a remedy that will promote the NLRA’s purposes.

In 1940, the Supreme Court judicially amended the NLRA in Republic Steel to require an employee who has been fired illegally to find another job as quickly as possible in order to mitigate – that is, lower – any back pay an employer might be obligated to pay. An employee’s failure to mitigate the employer’s damages would mean that the employer – who had broken the law – would owe the injured employee no or less back pay. [No Rights Without a Remedy: The Long Struggle for Effective National Labor Relations Act Remedies]

In 1941 in Phelps Dodge, Justice Frankfurter criticized judicial limitations on NLRA remedies as  “thwart[ing] the central purpose of the Act, directed as that is toward the achievement and maintenance of workers‘ self-organization.”

Judicial amendments have continued to limit employee protections and rights to make common cause with one another and to organize unions. The 2004 Brown University case, decided by one of the most conservative Boards in recent history, held, “as a matter of policy,” that graduate student workers were students and, and, therefore, could not be employees as defined by the NLRA. There was no legal support for such a finding and no logical reason why a student could not also be an employee. [Not a Limited, Confined, or Private Matter -- Who Is an "Employee” Under the National Labor Relations Act and Understanding How Employees’ Rights to Organize Under the National Labor Relations Act Have Been Limited: The Case of Brown University]

One last example involves collective bargaining. The NLRA says that its policies include “encouraging the practice and procedure of collective bargaining.” However, the courts have created two doctrines that, as Chris Rhomberg so clearly showed in his 2012 book, The Broken Table: The Detroit Newspaper Strike and the State of American Labor, have destroyed collective bargaining and the right to strike. These two doctrines (1) allow employers to permanently replace strikers and (2) allow employers to implement their final offers when the parties reach a bargaining impasse. The doctrines have repealed employers’ obligation to bargain in good faith.

The right to permanently replace a striker arose from the Supreme Court’s 1937 Mackay Radio case. The judicially created doctrine that employers may permanently replace strikers exists today, despite NLRA § 13, which says, “Nothing in this Act except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right. Actual replacement or the fear of permanent replacement certainly interferes with, impedes, and diminishes the right to strike.

The doctrine of implementation upon impasse also directly destroys NLRA rights. It makes getting to an impasse – rather than an agreement – the employer’s goal. An employer is unlikely to want to engage in collective bargaining if, by law, it can have its own way by continuing to say no. [Testing the Effects of Striker Replacement and Employer Implementation of Final Offers on Employer and Union Bargaining Power]

More on judicial amendments may be found in James B. Atleson, Values and Assumptions in American Labor Law.

Labor and Employment Law, Supreme Court