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REAL WORLD LABOR
Article 1.3
U.S. LABOR LAW-STACKED AGAINST WORKERS
How the United States' stacked labor laws make it nearly impossible for workers to
gain union representation.
BY ANDREW STROM
September/October 2003
E
ver wish you had a union at work? Surveys show that half of all non-union
workers do. Still, less than 10% of private sector workers in this country enjoy
the benefits of union representation. How is this possible? U.S. labor laws that are
stacked against workers can take much of the blame.
Under the National Labor Relations Act (NLRA)-the law that governs labor
relations for most of the private sector-to obtain bargaining rights a union must
represent a majority of the employees in an appropriate "bargaining unit." So, first
you and your co-workers have to figure out who counts as an "employee." According
to the NLRA, supervisors-anyone who uses "independent judgment" to "responsibly direct" the work of others-are not "employees." This excludes millions of
workers who would qualify as workers under any common sense definition and
leaves millions more unsure if they have a legal right to unionize.
Let's say there are 60 people at your workplace; five are clearly supervisors, five
more are borderline supervisors, and 35 of the remaining 50 workers want a union.
You should be home free, right?
Not so fast. Your employer is not required to bargain with your chosen union
just because all or a majority of workers sign a petition. Instead, your employer can
demand a secret ballot election held by the National Labor Relations Board (NLRB,
the federal agency that administers the NLRA). The law gives employers any number of ploys they can use to drag out the election process and to craft a bargaining
unit where they'll win the vote. Before the election, your employer can insist on a
hearing about whether the bargaining unit the workers have selected is "appropriate." For instance, if workers at a retail chain store want a union, the company will
argue that the bargaining unit must include every store in the metropolitan area.
The employer may also demand a hearing about the borderline supervisors, trying to
exclude them from the union if they are pro-union and insisting on their right to
vote if they are anti-union.
If you clear these hurdles, your employer will almost certainly wage an antiunion campaign in the months before the election. When the NLRA was first passed
in 1935, the NLRB held that employers were prohibited from interfering in union
elections, but the 1947 Taft-Hartley Act allowed employers to express anti-union
views as long as they do not make threats or promises.
Now, employers may require workers to attend anti-union meetings without
providing equal time to pro-union workers. (By contrast, under federal election
law, if an employer invites one candidate to address employees, it must give the
same opportunity to all other candidates.) Supervisors can meet individually with
mnrlrP'r-c '>nrl -:>clr thPrn tn vntP ::IO"::Jin .o;;t the union. (Comoar_e_ _
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CHAPTER 1: LABOR LAW, POLICY, AND REGULATION
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harassment law, which recognizes that it can be inherently coercive for a supervisor
to ask a subordinate for a date.) The company may also post and distribute antiunion propaganda while simultaneously prohibiting workers from distributing
union literature in work areas. (Imagine a political election where only the incumbent is allowed to advertise.) And thanks to a 1992 Supreme Court decision,
non-employee union organizers have no right to campaign on the employer's private property, even if the property includes a large parking lot open to the public.
If you work in the airline industry you are covered by the Railway Labor Act
(RLA), and a different set of rules applies. The National Mediation Board, which
regulates elections under the RLA, has found that it is inherently coercive for
employers to hold small group or one-on-one meetings to campaign against the
union. But in other ways, the RLA makes obtaining union representation especially
difficult for those it covers. Under the RLA, for example, you must organize as part
of a nationwide bargaining unit, making it highly impractical for workers to organize at large, geographically dispersed companies. This is why Federal Express got
Congress to amend the RLA in 1996 so that it would be covered.
Some anri-uniou tactics are illegal. Bur even where the law does place limits on
employers' actions during an organizing drive, it fails to provide meaningful remedies or deterrents. You may think that if you were fired for trying to organize a
union, a clear violation of the NLRA, you could sue and win a multi-million dollar
verdict. But unlike laws that protect workers from other forms of discrimination,
there is no private right to sue under the NLRA. Your only recourse is to file a charge
with the NLRB. The Regional Director will conduct an investigation, but won't give
you access to the information it gets from your employer. Your chances aren't good;
Regional Directors dismiss almost two-thirds of all cases without a hearing. Even if
the Regional Director decides to take your case, the only remedy is an order of reinstatement and back wages, less any wages you earned in the interim. There are no
fines, no penalties, and no punitive damages. And reinstatement only comes at the
end of a lengthy legal process-a hearing before an Administrative Law Judge, an
appeal to the five-member NLRB in Washington, followed by an appeal to the U.S.
Court of Appeals. The process routinely takes five years. No wonder companies regularly fire workers for trying to organize.
What if, despite your employer's anti-union campaign, you and your co-workers stick
together and vote for union representation? Your employer has one more chance to contest the result, by claiming (again) that the bargaining unit was inappropriate, or that
workers were threatened by union organizers, or any of a dozen other reasons to invalidate the election. Whether or not the arguments succeed, the employer can usually buy
two more years of delay until the U.S. Court of Appeals orders it to bargain.
Once bargaining finally begins, your employer's only obligation is to bargain in
"good faith." One-third of the time, workers who vote to unionize never even get a
first contract. Why? If your employer fails to bargain in good faith, the only remedy
is ... an order requiring it to bargain in good faith. Workers cannot recover damages
for the deprivation of their right to bargain.
Suppose your employer does negotiate in good faith. Getting a good contract is
still hardly a given. Traditionally, workers would strike if their employer refused to
_ ive in to their demands_. But strikes rarelv SIIC.C"e~ the.se.-d::nr_..._ __yOJlr,..,QJDnlmrPr r~n't
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REAL WORLD LABOR
fire you for striking, bur it can hire "permanem rcplacemems." When srrikers rry to
return to work, the employer does not have to take them back, it merely has ro place
them on a preferential hiring list in case any of rhe permanent replacements quit.
Of course, any srrike would be more effective if you could expand it beyond
your own employer. Bur rhe Tafr-Harrley Act made it illegal for workers to strike or
picker one employer in order to put pressure on another. 1his prohibition against
"secondary" strikes applies even to strikes against another subsidiary owned by rhc
same company. It also prohibits actions rhar go one step up the corporate food
chain; for example, janitors who work for a cleaning contractor cannot picker the
building owner. And workers at Ford or GM are prohibited from striking to supporr
workers at a parts supplier.
Nevertheless, there are still some workers who have enough power to wage an
effective strike by themselves. But once again Taft-Hanley is there to keep the workers in check. The law allows the President ro enjoin any strike char poses a threat to
"health and safety"-a provision courts have interpreted broadly to include threats
to the nation's economic well-being.
Unions grew rapidly after the NLRA was passed in 1935, but the percentage of
unionized workers has declined steadily since the passage of Taft-Hartley in 1947,
when over 40% of private sector workers belonged to unions. A comprehensive labor
law reform bill was introduced during the Carter administration that would have
given unions equal time when employers hold anti-union meetings, strengthened
the remedies for violations of the law, and speeded up the enforcement process. The
bill was filibustered to death by Republicans. During the Clinton administration,
there was a proposal to limit the ability of employers to hire permanent replacements
for strikers, but again it didn't get the backing of rhe 60 Senators necessary to prevent a filibuster. Since that defeat, unions have vinually given up on achieving labor
law reform.
In a few instances workers have, with union backing, waged successful campaigns that get around one-sided labor laws by using shareholder activism, marches
and rallies, reaching out to elected officials,, handbilling, and the Internet. But with
labor law so stacked against workers, it's a miracle that any workers manage to gain
union representation at all. D