Ellen Dannin | Enforcing Labor Rights

For years, critics have claimed that the National Labor Relations Act and the National Labor Relations Board are, at best, ineffective and, at worst, an enemy of labor. Union critics complain that unfair labor practice and election cases languish for years and that NLRA remedies are so weak it is not worth filing a charge.

What Are the Facts?

Take, for example, this review of a film about textile manufacturer J.P, Stevens: “The film also misses a perfect opportunity to criticize an enemy of labor, the NLRB – inexcusable for a film made by a union. Culbertson points out, “The law is not designed to handle situations like Stevens.” He makes Stevens’ lawbreaking seem like a one-in-a-million situation. Any union organizer knows that is nonsense. While Stevens’ labor law violations have been massive, their sheer number is the only thing that makes them unusual. Labor law is constructed in such a way that it virtually begs employers to break it.” [emphasis added]

Or consider a comment on The Hill blog: “Further, thanks to business lobbying that has diminished the Act over time, the NLRA now permits only weak remedies to corporate law-breaking, which, in turn, take far too long to implement.”

Do these criticisms have merit?

Unfair Labor Practice Cases

Consider, first, NLRA unfair labor practice cases. Many people incorrectly think that the NLRB handles all workplace problems, so they call NLRB regional offices for help or, increasingly, visit the NLRB’s website, which includes answers to many common questions, including links to the state and federal agencies that handle workplace problems not covered by the NLRA. The NLRB website also provides examples of actions that violate the NLRA. Getting callers to the correct agency is important, because most employment laws have very short statutes of limitations, many as short as six months.

In FY 2010, the NLRB’s 51 field offices received 116,223 calls or visits from people asking for advice about workplace problems. Most of the problems that lead people to call the NLRB are not under the NLRB’s jurisdiction. If they are handled by some other agency, the caller is referred to that agency. My experience as an NLRB regional employee was that many calls involved at-will employees who had been fired for reasons not protected by any law. These calls are especially difficult, because most people believe, incorrectly, their employers can only fire them if they have just case. Washington University law professor Pauline Kim tested those theories and found that roughly 80-90 percent of employees thought that their employers could only fire them for cause.

NLRB unfair labor practice cases begin when someone files a charge. In FY 2010, 23,381 unfair labor practice charges were filed. Charges may be filed when a caller raises an issue that seems likely to be protected by the NLRA. In that case, an NLRB information officer will help fill out the charge form.

When a charge is filed, it is assigned to an investigator, and, if the investigation shows that the charge has merit, the agent first tries to settle the case. Roughly 36% of investigations find reasonable cause to believe that the NLRA has been violated. (It is possible to refile a charge in a case that is found not to have merit, if new evidence is found, as long as it is filed before the six month statute of limitations expires.)

Most NLRA cases that are found to have merit settle. In FY 2010, the NLRB regions settled 96% of unfair labor practice cases. In other words, only 4% of unfair labor practices went to trial. Most of those settlements come immediately after the case is found to have merit. As a result, in FY 2010, even though the NLRB found roughly 7000 charges to have merit, it issued only 1,243 complaints.

If the case does not settle, it is assigned to an NLRB attorney – at no cost to the charging party – to try the unfair labor practice case before an Administrative Law Judge. The NLRB attorney will also continue efforts to settle the case, and many cases do settle before trial. Cases may be appealed from the ALJ’s decision to the Board and from there to a federal court of appeals and even the Supreme Court. For FY 2010, from the time complaints were issued to the start of a hearing was 87 days, less than three months. The NLRB typically wins more than 91% of these cases, in whole or in part.

In FY 2010, only 109 cases – or about 1.5% of meritorious cases – were appealed to the courts of appeals or the Supreme Court. Cases that are appealed to the appellate courts – not just NLRB cases – do take years to resolve. A few cases that pend for a long time in the courts may drive up the average (mean) time it takes to resolve NLRB cases. However, the vast majority of NLRB are not appealed, so the vast majority of NLRB cases do not take years to be resolved.

Representation Cases

Most representation cases do not take years for an election to be held. Far from it. In FY 2010, 3204 representation cases were filed with the NLRB, up 10% from the prior year. Almost all elections – 92.1% in FY 2010 – were held based on an agreement between the union and employer, and half the elections were held in 38 days or less. In FY 2010, the median time from filing a petition for election to the election was 38 days.(Median time, means that half the elections took less than 38 days, and half took more.) All but 4.9% of elections were held within 56 days of filing the petition. Time to hold an election has dropped in recent years as a result of new NLRB initiatives, and there are continuing efforts to shorten those times even more.

Elections can be delayed when a pre-election hearing is held to decide issues, such as which employee job classifications have the right to vote. In FY 2010, decisions in pre-election hearings were issued in 185 cases — 5.77% of election petitions filed – in a median time of 37 days. Certification of representation or the results of the election can also be delayed when post-election objections to the conduct of the election are filed or there are challenges to the right of an employee to vote.

Remedies

NLRB remedies are often criticized as weak or even completely ineffective. It is true that remedies for violations of the National Labor Relations Act should be stronger. The important question – and one almost never asked by critics – is why NLRA remedies are weak.

First, whether through settlement or trial in FY2010, the NLRB recovered $86,557,684 for employees whose rights had been violated, and 2,250 employees were offered reinstatement to their former jobs.

Second, when it was enacted and still today, the NLRA required the following remedies: (1) a cease and desist order and (2) an order requiring affirmative action that would effectuate the NLRA’s policies. These two remedies should have been strong remedies.

The cease and desist order has been criticized as worthless, and it is true that in most cases, it has no effect. However, in cases involving recidivist wrongdoers, cease and desist orders are the first step in getting compliance and other powerful remedies through contempt proceedings. In FY 2010, 281 cases were referred to the Contempt Litigation and Compliance Branch and were resolved in various ways. Among the contempt remedies in FY 2010 were a writ of body attachment, $2,015,805 in backpay or other compensatory damages, and $34,144 in court costs and attorneys’ fees.

If the standard used in issuing NLRA remedies was that they effectuated the Act’s policies, employee rights would be enforced. The NLRA’s policies are set out in§§ 1, 7, and 13.

Section 1 says:
It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred 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.

Section 7 says:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

Section 13 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.

In short, the statute has never limited remedies for illegally discharged employees to reinstatement, backpay minus interim earnings, a notice posting, and a cease and desist order. Those limitations were created by judges and mean that, even though the remedies language in the NLRA is the same as when it was enacted, the remedies available have been progressively limited. The NLRA is not the only law to suffer from “judicial amendments”. All worker rights laws have been treated this way.

Strengthening NLRA Remedies

Setting out a strategy to strengthen NLRA remedies would take at least a book. One book that discusses remedies in detail is Taking Back the Workers’ Law – How to Fight the Assault on Labor Rights. Other sources on this issue may be found here, here, here, and here.

In sum, even if the most extreme criticisms of the NLRA are not accurate, it would not be wise to dismiss them completely. The NLRB could certainly do more to enforce the NLRA and to promote Congress policy. Elections need to be held more quickly. And the NLRB needs to order remedies that live up to Congress’ mandate when it enacted the National Labor Relations Act..

The statistics discussed in this posting and additional information on the operations of the NLRB in FY 2010 may be found in the Office of the NLRB General Counsel, Summary of Operations (Fiscal Year 2010), Memorandum GC 11-03 January 10, 2011.