RIGHTS WITHOUT REMEDIES: The Failure of the National Labor Relations Act

[Earth Bound Misfit]

Nancy Schiffer
Associate General Counsel
AFL-CIO
Washington, D.C

http://www.abanet.org/labor/lel-annualcle/08/materials/data/papers/153.pdf

A WORKERS’ RIGHTS STATUTE IS ONLY AS GOOD AS ITS ENFORCEMENT

The focus of a massive political and legislative assault spearheaded by America’s corporations is the proposed Employee Free Choice Act. This proposed legislation has generated the drama described on the preceding page and has clearly become the corporate community’s worst nightmare.

The Employee Free Choice Act amends the National Labor Relations Act by removing current barriers to unionization, guaranteeing workers a first contract when they choose union representation, and increasing remedies for employer violations during organizing and first contract campaigns. Specifically, it provides for union certification when a majority of workers in a bargaining unit have authorized the union to represent them, offers mediation and arbitration procedures when parties cannot reach a first contract, and imposes civil penalties, treble backpay damages and mandatory injunctive relief for “willful or repeated” violations during organizing and first contract efforts. That it could lead to more workers forming unions and more workers covered by
collective bargaining agreements is apparently what has sparked corporate America’s interest.

-snip-

NLRA REMEDIES ARE INADEQUATE AND INEFFECTIVE

The failure of NLRB remedies is hardly new and hardly debatable. “Serious weaknesses have been identified—by scholars as well as by the Board itself—in the Board’s traditional remedies….” New York University Law School Professor Cynthia Estlund has characterized NLRB remedies as “paltry,” “easy and cheap,” and “the Achilles’ heel of employee rights.” According to current NLRB Member Wilma Liebman, “the statute’s weak remedies … fail both to deter wrongdoing and to
compensate victims of unlawful discrimination.” A Human Rights Watch report in 2000 warned that “a culture of near-impunity has taken shape in much of U.S. labor law and practice” because “enforcement efforts often fail to deter unlawful conduct” and “feeble remedies often embolden employers to further violate workers’ rights.” Companies have little incentive to respect workers’ rights in the face of remedies so meager that they are treated by employers as “a minor cost of doing business.” This lack of meaningful remedies “has also rendered the Act ineffective and encouraged unscrupulous employers to abuse their employees….”

-snip-

These remedies have remained relatively constant over the decades since the Act’s passage. They don’t sound like much because they are not much. And delays often make them wholly ineffectual. “If employment law has electrified employers, labor law has proven to be a rather low-voltage instrument. … the low-voltage quality of labor law rights lies largely in the enforcement procedures and remedies for the violation of those rights.” That these remedies are a resounding failure is well-documented in the sensational rise of employer unfair labor practices since the Act’s passage.

-snip-

CONCLUSION:

Absent effective enforcement, the guarantees of the NLRA will continue to be illusory. Significant changes in the level of unlawful conduct directed against workers’ union support will require much more than mere tinkering. Even innovative remedial initiatives have not worked and, as we have seen, the sway of politics can quickly erase decisional gains. Virulent anti-union campaigns will continue to be the norm and the rights guaranteed by the Act will remain outside the grasp of American workers absent an aggressive, concentrated effort to change, not just the remedial scheme, but the structure under which workers exercise their rights and the process by which they achieve union representation and collective bargaining agreements.

This paper has outlined remedial measures undertaken in the past. Much more is needed. Workers deserve a Labor Board that will uphold the statutory mandate of the National Labor Relations Act and protect their rights to organize and bargain. They deserve a statute that provides a pathway to collective bargaining that works to bring workers into the middle class and provides them the opportunity to stay there. These changes which can be accomplished by passage of the Employee Free Choice Act.

[Omaha Steve]

1. The original Act was destroyed by....

Right wing activist judges. Wonder why the right doesn't get that about activist judges?

[Tangerine LaBamba]

3. August, 1981 -

in a move that I'm still not entirely convinced wasn't bought and paid for by the Republicans, PATCO went out on strike, and Reagan, as promised, broke the union.

After that, all bets were off..........................

[Tangerine LaBamba]

2. My best friend from law school

wanted nothing but to be a labor lawyer. He LOVED labor law, and went right to work for the NLRB after graduation. That was in 1976.

He's still there, head of litigation for one of their territories, and he's watched unions be eviscerated while the NLRA provided nothing in the way of remedies.

Now, as he starts contemplating retirement - we were talking about the deaths this past week of three of my old colleagues (yes, three of them - all great men) - and my old best friend said, "I wasted my whole professional life."

I could not think of a thing to say to him. He'll stay there for a few more years, and maybe he'll see changes that will cheer him. I hope so........................