What if your employer threatened to close down your workplace unless the employees voted for the candidates your employer supported? Most people would say that the right to vote is our most precious right and threatening to take away that right must violate the law.
But what if the “candidate” your employer opposed were a union, and what if your employer threatened to shut down the company if the employees voted for a union? And what if the employees screwed up their courage, despite the threat, and voted to unionize even though the employer was the largest employer in a small town? What if the employer then closed the plant? Surely that threat would be illegal, and following through on the threat would require the employer to rehire the employees and give them back pay.
But in 1956, when the employer who owned the Deering Milliken plant in Darlington, South Carolina, took precisely these actions, the US Supreme Court held that the employer had no obligation to reinstate the employees or pay them back pay.
But wait, you say, isn’t it illegal to discriminate against workers for organizing a union? If employees have a legal right to make this choice, how can the employer commit industrial capital punishment on a mass scale and get away with it?
In this case, the NLRB found a violation of the law, and the courts agreed, but the courts were troubled, seemingly by the question of remedy. Did the court have the legal right to order an employer to operate a business when it did not want to? Would the court constantly have to supervise a reluctant employer? Those are certainly legitimate concerns, but the court seemed to have tunnel vision that made it lose sight of ways to enforce the NLRA and make whole the employees whose rights had been massively violated.
The Supreme Court got stuck because it framed the issue as the employer’s absolute right to close its business, even if the purpose was to violate employees’ statutory rights. The court did throw a bone to the employees, however, finding that if the business was closed to chill the rights of employees to unionize in other plants owned by the employer, the closing would violate the law.
As a result, we have a crazy case that gives no remedy to employees whose rights have been massively and clearly violated. Instead, there is a theoretical remedy only if the employer closes their plant because they try to unionize and it violates the rights of other employees.
As it turned out, based on a rehearing that focused on that very issue, the NLRB found that Roger Milliken, an owner and chief executive of dozens of plants, had used the Darlington plant closing to “inform” employees in other plants owned by Deering Milliken of the consequences of unionizing. As a result, the NLRB ordered a remedy for the Darlington employees – back pay and reinstatement to equivalent positions in other mills owned by Deering Milliken, along with moving expenses.
But don’t break out the champagne too quickly. The litigation did not end until more than two decades after the violation. As a result, only one Darlington employee out of 550 was reinstated to a job with Deering Milliken.[1] It took 24 years for the employees, or the heirs of the employees who had died by then, to receive any back pay at all.
The Supreme Court’s judicial amendment, which made it a violation of the law to threaten to close a plant because employees unionize, but not a violation to actually close the plant if employees unionize, created a senseless result that utterly failed to meet the standards Congress enacted.
It didn’t have to be that way. Both employer and employee rights could easily have been accommodated under existing law. The Darlington plant could have been allowed to close so the employer did not have to operate a plant where the employees were represented by a union. As for the employees, they would receive pay from the employer from their termination until it offered them an equivalent job or the employees quit or retired. Those remedies would allow the employer to stand on its principles or choose to compromise those principles and reopen the plant. Instead, the Supreme Court judicially amended the NLRA to create employer rights and a remedy that undermined the policies of the NLRA.
How many employees of Deering Milliken, or of other employers in the geographic area, or, indeed, throughout the country, would risk organizing a union after Darlington? How many employees today are deterred from unionizing by threats of plant closing?
Nonetheless, people sometimes surprise with their courage and optimism. In the 1980s, an employer threatened to move part of its operation because the union refused to accept wage and benefit cuts in the middle of a contract.[2] The union filed an unfair labor practice charge with the NLRB. While the charge was pending, the employer began to remove equipment from the plant.
The union, alerted by employees at the facility to which the equipment was being moved, asked the NLRB to seek an injunction to stop the relocation while the unfair labor practice was litigated. Section 10(j) authorizes the NLRB to ask courts to temporarily halt activity reasonably believed to violate the law while the case is being tried. The NLRB asked for an injunction; the court granted it, and the company moved the equipment back into the plant. The union and company then negotiated an agreement that resolved the issues and kept the work at the plant. This is how the law is supposed to work.
The employees at the two plants worked together. The employees at the plant that was to receive the work were willing to sacrifice new work for the sake of their fellow employees who would lose it. This is worker solidarity. The NLRB and the court did their jobs of enforcing the law. And once the employer recognized that the law would be enforced, it negotiated an agreement with the union that was satisfactory to both.
What if that were always the case?
Patricia E. Eames, The History of the Litigation of Darlington as an Excuse in Administrative Procedure, 5 U. Tol. L. Rev. 595 (1973-1974).
This case was part of one of the author’s own practice and has not been documented elsewhere.
This is the 15th article in the Judicial Amendment Project series on the history of the National Labor Relations Act. The stories in the series, to date, include:
Why the National Labor Relations Act Is a Weak Law Today – and How We Can Restore its Power
Judicial Amendments and the Attack on Worker Rights
Solidarity NOT Forever: How the Supreme Court Kicked Retirees Into the Gutter
Strike and You’re Out: The Supreme Court’s Destruction of the Right to Strike
A Strike Is a Strike and Only a Strike
At an Impasse: Collective Bargaining Under the Judicial Amendments
The Supreme Court Empowers Employers to Lock Out Workers
The Judicial Amendments’ 1-2-3-4 Punch to Collective Bargaining
Extra! Extra! Rich Corp Execs Shut Down the NLRB! Then and Now
The Dues and Don’ts of Union Dues
Union Dues and Don’ts: How Conservative Interest Groups Are Reducing Unions’ Financial Resources
Lechmere: The Employer’s “Right” to Keep Employees Isolated and Uninformed
Judicially Amended “Remedies” Fail to Promote Purposes of NLRA
Turning the NLRA into Groundhog Day, the Movie
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