Constitutional Underpinnings of U.S. Labor Law
The U.S. Constitution makes no specific mention of the right to organize, to bargain collectively, or to strike. However, the First Amendment of the U.S. Constitution (1789) protects freedom of assembly, free speech, and the right to petition the government for redress of grievances. Laws or regulations that violate these rights may be struck down as unconstitutional by the Supreme Court of the United States. The 14th Amendment (1866) and its mandate for "equal protection of the law" applies the Bill of Rights to the individual states. Moreover, each state has its own constitution and bill of rights providing equivalent guarantees. The U.S. Supreme Court has specifically applied the First Amendment to protect workers' organizing, political and legislative action, peaceful picketing and other lawful activity.86
The "commerce clause" in Article I, Section 8 of the United States Constitution empowers Congress to "regulate commerce among the several states." Citing "burdens and obstructions" on interstate commerce when employers refuse to deal with workers' organization, the Supreme Court upheld the constitutionality of the National Labor Relations Act based on the commerce clause.87 The same constitutional clause is the basis of federal jurisdiction over most U.S. labor law regarding workers' freedom of association, since most commerce is interstate.
Landmark federal legislation in the twentieth century set the framework for protection of workers' rights to organize, to bargain and to strike (note that U.S. laws often carry the name of their congressional sponsors and are often referred to by those names):
The Railway Labor Act of 1926 (RLA) established the right of workers in the railroad industry to organize and bargain collectively through representatives of their own choosing. That law was limited to railway labor because of the central importance of rail transportation in the national economy. In 1964 the RLA was extended to workers and employers in the air transportation sector. Today, nearly one million U.S. rail and air transport workers are covered by the RLA.
The Norris-LaGuardia Act of 1932 outlawed contracts between workers and employers in which the worker promised never to join a union. Such "yellow-dog" contracts, as they were called, were a common demand made upon workers by employers to prevent exercise of rights to organize and bargain collectively. The Norris-LaGuardia Act also sharply constricted the ability of employers to obtain labor injunctions as a strike-breaking measure. Finally, it relieved workers' leaders of personal criminal and civil liability for the acts of individual workers unless the leaders participated in or ratified the acts.
The National Labor Relations Act (NLRA or Wagner Act) of 1935 extended to most private sector employees "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." The NLRA created a new concept in American law: the unfair labor practice. The law defined five unfair labor practices, including discrimination against workers for engaging in mutual aid or protection and refusal to bargain with workers' freely chosen representatives. It made such practices unlawful.
The Labor Management Relations Act (LMRA or Taft-Hartley Act) of 1947 amended the NLRA, in a number of respects sought by U.S. employers who argued that the Wagner Act was too pro-labor. The LMRA created a new set of unfair labor practices under which unions could be held liable. It established an "employer free speech" clause permitting managers to openly and aggressively campaign against worker self-organization. The Taft-Hartley amendments allowed individual states to enact "right to work" laws barring voluntary agreements between workers and employers to require payment of union dues by all represented employees. The law prohibited "secondary boycotts," where workers involved in a "primary" labor dispute seek solidarity action by workers at a supplier or customer of their own employer, and instructed the NLRB to seek immediate injunctions against such action.
The Labor Management Reporting and Disclosure Act (LMRDA or Landrum-Griffin Act) of 1959 established a "bill of rights" for individual trade union members in internal union affairs, including a right to democratic elections of leaders. The LMRDA set forth detailed financial reporting and disclosure requirements for unions. It also extended prohibitions on secondary action by workers.
Today, the Wagner Act, the Taft-Hartley Act and the Landrum-Griffin Act are the most important federal labor laws governing private sector labor-management relations. While they are separate statutes, these laws often overlap and refer to one another in a complex legislative structure. For convenience, this
bundle of statutes is often called "the NLRA," a practice followed in this report. Other laws such asthe Fair Labor Standards Act, the Occupational Safety and Health Act, the Equal Pay Act, the Agricultural Workers Protection Act and so on cover minimum wage, hours of work, child labor, workplace safety, nondiscrimination in employment, migrant labor conditions and other matters separate from labor-management relations.
Labor Law Jurisdiction
United States labor laws on the right to organize, to bargain collectively and to strike fall almost entirely within federal jurisdiction. Under the commerce clause of the U.S. constitution, federal law prevails over state laws on matters of interstate commerce-an extremely broad jurisdiction in the complex modern economy.
U.S. labor laws covering freedom of association mainly are enforced by federal government authorities and federal courts. Occasional state efforts to pass legislation on labor relations matters are usually struck down by the courts as pre-empted by federal law. The states are allowed a limited legislative or law enforcement role where predominantly local interests are at stake.
Basic Labor Law Policy
Section 1 and Section 7 of the 1935 Wagner Act set forth the central precepts of U.S. labor law.
Section 1 states: "It is hereby 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 occur 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."
Under Section 7 of the NLRA, "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 mutual aid or protection." The Taft-Hartley Act of 1947 added to Section 7 the terms "and shall also have the right to refrain from any or all of 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)."
An important feature of U.S. labor law is that it protects "concerted activity" and "mutual aid or protection." That is, employees do not have to be involved in trade union activity to be protected by the law. Indeed, they may have no intentionat all to unionize, but as long as they act in concert their activity is protected under the law.88
Exclusions from coverage of the NLRA
Legal protection for concerted activity, including the right to organize, to bargain collectively and to strike, are afforded to "employees" as defined in the law. The definition specifically excludes agricultural workers, domestic workers, managers, supervisors, confidential employees and independent contractors from coverage. The exclusion means that employers can discharge these workers with impunity for attempting to form and join a union. Victimized workers have no legal recourse (see the discussion in Chapter V., Defenseless Workers: Exclusions in U.S. Labor Law. below).
Unfair labor practices
The central instrument in U.S. law for protecting workers' rights to organize, to bargain collectively, and to strike is the definition of five unfair labor practices in Section 8(a) of the National Labor Relations Act. An unfair labor practice violates the NLRA and is subject to the remedies provided by the law.
*Section 8(a)(1) of the NLRA makes it an unfair labor practice to "interfere with or coerce" employees engaged in concerted activity.
*Section 8(a)(2) of the NLRA makes employer "domination" of a labor organization an unfair labor practice.
*Section 8(a)(3) protects the right to organize by defining an unfair labor practice of discrimination against workers for protected concerted activities, including union activity.
*Section 8(a)(4) makes it unlawful to retaliate against a worker for filing unfair labor practice charges or giving testimony in NLRB proceedings.
*Section 8(a)(5) defines as an unfair labor practice an employer's "refusal to bargain" with a certified collective bargaining representative of employees.
U.S. labor law is remedial, not punitive. It does not provide for civil or criminal sanctions or penalties in unfair labor practice cases. An employer that commits an unfair labor practice must "cease and desist" from unlawful conduct and post a notice in the workplace promising not to repeat the conduct. Steps must also be taken to restore the status quo ante, such as reinstatement and back pay forworkers discharged for organizing, or a return to the bargaining table in refusal-to-bargain cases. In back pay awards for workers, the amount of any interim earnings obtained by the worker is deducted from the back pay paid by the employer.
How Workers Form and Join Trade Unions in the United States
Workers usually take the first steps to exercise freedom of association in the workplace with informal meetings among themselves. In small groups at lunch or during breaks, or at a nearby restaurant or coworker's home, they discuss wages, benefits, safety conditions, treatment by management and other problems at their workplace. They might react to a policy move by management-a change in benefit plans, for example, or a new incentive pay system. They often compare their employment conditions to other work experience they have had, or to what they know about unionized workplaces in the same community.
Enter a Union
Sometimes workers' discussions remain gripe sessions, and nothing more happens. But sometimes workers call a local union office for help.89 A union staff organizer-an employee of a union whose job is to help workers form new unions-normally arranges a series of meetings with workers. Like the workers' own initial meetings, these are usually in small groups starting at a worker's home or at a nearby restaurant.
As the circle of interested workers grows wider, meetings start to be held in larger union halls or rented meeting space. Workers tell organizers about conditions in the workplace. Organizers tell workers how the union operates and what the union has achieved in other locations. If the organizing effort takes root, the most active workers form an organizing committee to advocate openly for the union inside the workplace.
The union organizer distributes cards for workers to sign indicating their desire to join the union and have the union represent them in collective bargaining with the employer. These authorization cards can be signed at any time, beginning with the first workers involved in the organizing, then by more workers as the organizing effort proceeds. Alternatively, some unions prefer to have employees active in the organizing committee distribute cards and obtain signatures from coworkers in a shorter period after the committee takes shape and the organizing effort is out in the open. Under legal rules, workers usually can hand out cards and other literature in non-work areas on non-work time, typically in a break or lunch room.
Moving to an Election
Once cards are signed by at least 30 percent of the workers in the "bargaining unit"90 they seek to form, workers can petition the nearest regional office of the NLRB to hold a secret-ballot election. If a majority votes for representation, the NLRB will certify the results, creating a legal obligation for the employer to bargain with the workers' chosen representative. Normally, workers wait until a supermajority-two-thirds is a common rule of thumb-have signed cards before they petition for an election. Union organizers have learned from experience that the percentage of favorable votes in an election usually falls from the percentage that signed cards. They want to enter the election campaign phase with a margin of security, hoping to retain a majority when the election is held.91
The Election Campaign
Most NLRB elections take place four to eight weeks after workers file their petition. About 20 percent of elections are held more than eight weeks later, often when the employer contests the makeup of the bargaining unit sought by theunion-for example, arguing that workers included in the union's petition are supervisors who should be excluded.
The NLRB calls the weeks between a petition and an election the "critical period" because an employer cannot claim no knowledge of a union organizing effort during this time. Such lack of knowledge is often used as a defense against an unfair labor practice charge when management dismisses a union supporter before a petition is filed.92
The pre-election period is usually marked by vigorous campaigning on all sides. Union supporters hold rallies, wear buttons and T-shirts with a pro-union message, and distribute pro-union flyers to coworkers. Management often engages consultants who specialize in designing and implementing forceful campaigns against workers' efforts to form and join a union. They write scripts for employers' letters to workers' homes, flyers distributed in the workplace, and speeches to workers in "captive-audience meetings" that are a staple of employers' campaigns against workers' attempts to form and join a union.93 Such meetings are called "captive" because attendance is mandatory for workers, and workers can be prohibited from asking any questions or making any comments under pain of discipline, including discharge. In addition, consultants typically train supervisors to present management's anti-union views in smaller individual and group meetings with the workers under each supervisor.
It is common for some workers within the group being organized to oppose forming and joining a union. They often form a "Vote No" committee and join managers and supervisors in campaigning against the union. It is illegal for employers to instigate or assist such a committee. Intensive discussions and arguments are common in the workplace during the pre-election period. After several weeks, the final days before the election usually reach a high pitch of tension, often with accusations of lies and dirty tricks.
NLRB agents conduct a secret-ballot election, usually in the workplace at times and places allowing all workers to vote during work time. When balloting ends, the NLRB agents count the votes immediately in the presence of company and union observers.
The NLRB conducts more than 3,000 elections each year at companies where workers seek to form and join a trade union for the first time. A few hundred other elections involve decertifications, where workers seek to get rid of a union; elections between competing unions; and unit "clarification" elections. Nearly two-thirds of elections are held in workplaces with fewer than fifty employees.
For many years now, workers have chosen union representation in approximately half of all NLRB elections. Aggregate vote totals in all elections also divide in roughly equal proportion.94
After an Election
Either party may file objections to the election claiming unfair tactics by the other side. The NLRB will investigate these allegations and hold a hearing if necessary. This "objections" case hearing is usually less formal than an "unfair labor practice" case hearing, which is more like a full-scale trial before a judge. Based on the results of an objections case hearing, the NLRB can certify the results of the election or order a new election.
Moving Toward Bargaining
If the NLRB finds that the election was fairly conducted and certifies that a majority of workers chose collective bargaining, the employer is obligated under the law to bargain in good faith with the workers' chosen representative. However, the employer can legally defy the NLRB's order by engaging in what is called a "technical refusal to bargain." Using this tactic, the employer refuses the union's bargaining request and forces it to file a new unfair labor practice charge with the NLRB. The NLRB's General Counsel must then initiate an unfair labor practice case based on the employer's refusal to bargain, and seek support for the NLRB ruling from a federal appeals court. Years of litigation can follow.
The NLRA makes refusal to bargain in good faith an unfair labor practice, and the good-faith bargaining obligation applies to both parties.95 In 1998, workers charged employers with refusal to bargain in good faith in 7,187 cases, while employers charged unions with such refusals in 172 cases.96
The law requires meeting at reasonable intervals and exchanging proposals on "mandatory subjects of bargaining"-issues of wages, hours and working conditionsaffecting represented employees. The "good faith" bargaining obligation has been defined as "an obligation . . . to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement
. . . a sincere desire to reach an agreement."97 To bargain in good faith, "a sincere
effort must be made to reach a common ground."98
But there are no objective measures of intentions or sincerity. Good-faith bargaining does not require either party to agree to a proposal from the other.99 Advised by skilled counsel, some employers go through the motions of good-faith bargaining to avoid a finding by the NLRB or the courts of bad-faith bargaining or "surface bargaining," defined as the "desire not to reach an agreement."100 A typical maneuver is to make a "killer proposal" that the employer knows the union could never agree to, while showing flexibility on other issues. Even if found guilty of bad-faith bargaining, the only remedy the employer faces is an order to return to the bargaining table, where the cycle can simply repeat itself.101
"Impasse" in Bargaining and Unilateral Implementation
Collective bargaining can end with an agreement. It can also end with each party making final offers without coming to an agreement. When such an "impasse" is reached, the employer is allowed to "post conditions." That is, the employer can unilaterally implement its final offer unless the parties agreed earlier to extend prior terms and conditions indefinitely (an increasingly rare contract term). Workers must then live with the imposed terms or strike to obtain their own proposal or a compromise that might result from a strike.
The impasse doctrine is not contained in the NLRA. It was elaborated by the courts, first by implication in a case where the Supreme Court ruled that unilateral changes prior to impasse are unlawful.102 The court said that "even after an impasse is reached he [the employer] has no license to grant wages increases greater than any he has ever offered the union at the bargaining table."103 This has been takento mean that the employer may implement his last offer to the union upon impasse, and this is now the rule in U.S. labor law.104
Strikes and Lockouts
Whether or not impasse has been reached in bargaining, workers can strike or employers can "lock out" workers in a test of economic strength to achieve their bargaining goals, unless a no-strike/no-lockout clause in a prior contract is still in effect. Workers can withhold their labor and set up picket lines at the workplace, but they cannot prevent the employer from continuing operations.
Employers have many options for continuing operations during a strike. In many workplaces managers and supervisors can maintain activity. As long as employers do not use threats to coerce them or promises to entice them, they are legally permitted to try to persuade workers not to join strikes or to "cross over" picket lines and return to work, which trade unionists call "scabbing."
Employers may subcontract operations to other employers during a strike. They can recover lost income from a mutual aid fund among employers, just as workers depend on a union strike fund for assistance. Even during a strike, employers and unions can agree, as many do, to have striking workers maintain certain equipment or functions to prevent safety hazards or to assure a rapid resumption of operations when the strike ends. Absent such an agreement, an employer may use contractors to this end.
Most important, employers may hire replacements for striking workers. These can be temporary replacements who leave the worksite when the strike ends. But management may also hire permanent replacements, leaving workers who exercise the right to strike jobless, able to be recalled to work only when a job is vacated by a replacement worker. Replacement workers, too, are called "scabs" by workers loyal to the strike. After one year, an NLRB election to decertify the union can be held, with strikers not eligible to participate in the vote.105
How the National Labor Relations Board Works
The National Labor Relations Act (NLRA) is the main U.S. law meant to protect workers' rights to organize, to bargain collectively, and to strike under U.S. law.106 The National Labor Relations Board (NLRB) is the main government agency that enforces those rights. But these are not the only laws and agencies that cover workers' freedom of association. The Railway Labor Act and the National Mediation Board (NMB) play parallel roles for workers in the railroad and airline industries. A Federal Labor Relations Act and Federal Labor Relations Board cover federal government employees' organizing and bargaining rights.
In states that allow public employees to form unions and bargain collectively, various labor relations laws and boards regulate organizing and collective bargaining by state, county and municipal employees. States also have "little NLRBs" for private sector workers in extremely small enterprises that fall short of the NLRB's jurisdictional requirements. The NLRB requires that the employer have annual gross revenues of $250,000 including $50,000 in interstate commerce to come under its jurisdiction.
While millions of private sector workers (agricultural workers, supervisors, managers and others) are excluded from coverage by the NLRB, a substantial majority of private sector workers in the United States do come under the board's jurisdiction.107 Its operations come up repeatedly in this study, making a "primer" on NLRB procedures an important reference. Knowing how the NLRB works is especially needed for understanding how, despite an enforcement staff committed to the purposes of the law and a successful record conducting elections and prosecuting unfair labor practice cases, legal entanglements in the board and the courts often frustrate workers' freedom of association rights.108
The NLRB has three independent branches: the five-member board in Washington, D.C.; a general counsel also based at NLRB headquarters, and adivision of administrative law judges. A network of thirty-three regional offices carries out NLRB tasks around the country.
Structure and Functions of the Board
The five-member NLRB is appointed by the president to individual five-year terms, subject to Senate confirmation. A board member's term is fixed regardless of any change in the presidency, so members remain in office when administrations change. It usually takes some time before a new president puts his or her "stamp" on the NLRB so that it comes to be known, for example, as "the Eisenhower board," (1952-1960) or the "Reagan board" (1980-1988) or the recent "Clinton board" (1992-2000).
By tradition, no more than three board members can belong to the same political party. Appointments often give rise to controversy, since nominees of necessity must be experienced labor law scholars or practitioners and thus have a record of writing or advocacy that can be identified as pro-labor or pro-management.109 Appointments often come in balanced "packages" with relatively moderate candidates identified as having a labor background or a management background. Such balanced appointments usually satisfy Republicans and Democrats in Congress and the administration in the White House.
Labor and management partisans often attack as biased an NLRB closely linked to an administration they are otherwise unhappy with. Trade unions vilified the Reagan board of the 1980s, and management forces have attacked the Clinton board of the 1990s.110 In general, though, while Democratic or Republican majority boards might lean one way or another, the NLRB carries out its mandate within a centrist range established by the law. Charges of bias are unwarranted. However, this report demonstrates that the range is established between legal margins that often frustrate workers' rights under international human rights standards.
The NLRB has two main functions. First, it oversees the representation election process by which workers in a bargaining unit choose whether to bargain collectively with their employer. The board conducts a secret-ballot election and certifies whether a majority has favored union representation. If so, the employer is obligated to bargain in good faith with the workers' chosen representative. Upon filing of "objections to the election" by a losing party, the board also decides whether election campaign behavior has tainted election results. If so, the board orders a re-run election.
Second, the board serves as an appeal panel that reviews written decisions by administrative law judges in cases involving unfair labor practices. The most common unfair labor practices are discriminatory reprisals against workers attempting to form and join trade unions (usually firings), and refusal to bargain in good faith with workers' chosen representatives. Unfair labor practices are legally and procedurally distinct from the election process and from "objections" to election conduct decided by the board in administrative proceedings. Performing its appeal function in unfair labor practice cases, the board is more like a court of appeals than an administrative agency.
The General Counsel
The general counsel of the NLRB is independent of the five-member board. The general counsel has an extremely powerful role in the structure of the agency, because he or she has the sole authority to issue a complaint in an unfair labor practice case. There is no appeal to the NLRB or to the courts if the general counsel does not issue a complaint.
Acting through the directors and staff in regional offices, the general counsel conducts investigations of unfair labor practice "charges" filed by workers, unions or employers. Key steps in the investigation include interviewing and taking statements from workers, employers, and others involved in a case and evaluating the evidence gathered. Employers are informed of any charges and have the opportunity to meet privately with board investigators and to present written arguments contesting a charge. Following the investigation a rigorous evaluation of the evidence is conducted by a team of experienced NLRB attorneys acting on the general counsel's behalf. Complex or novel issues can be referred to the general counsel's office for advice.
The median time lapse to conclude an investigation and evaluation of an unfair labor practice charge is nearly three months.111 If the general counsel finds "merit" in the charge that an unfair labor practice occurred, a "complaint" is issuedspecifying the violations in detail and setting a date for hearing before an administrative law judge. If the hearing takes place (many cases are settled after the issuance of a complaint and before hearing), the general counsel acts as prosecutor at no cost to the party who filed the charge. The general counsel is representing the public interest and advancing the public policy of the United States, which outlaws actions defined in the NLRA as unfair labor practices.
Regional Offices and Regional Directors
Obviously, the five-person board or the single general counsel does not conduct every election or prosecute every unfair labor practice. The NLRB has thirty-three regional offices to handle cases around the country, each with a staff of attorneys and agents headed by a regional director. Depending on the nature of the case, the regional director and staff handle "R" cases (representation elections) or "C" cases (unfair labor practice charges).
In all proceedings, regional staff and regional directors strive to achieve voluntary settlements of cases without going to hearings. Parties can submit position papers to the regional staff and informally argue their positions with the regional director. The general counsel finds "merit" in 35-40 percent of the unfair labor practice charges filed with the board.112 As in any litigation system, most of these cases are settled. Of cases where complaints are issued, about 15 percent reach the stage of a completed hearing before an administrative law judge.
In some 90 percent of cases where the general counsel found merit in the charge, relief is obtained-most often back pay for a worker who suffered discriminatory reprisals. In 1998 nearly 24,000 workers received back pay from employers because of discrimination for union activity. Of these, almost 18,000 received back pay under an informal settlement of their unfair labor practice case, while some 6,000 received back pay under an order by an administrative law judge, the NLRB, or a federal court.113 Total back pay paid to victimized workers in 1998 was nearly $90 million.114
While superficially these totals can appear to indicate an enforcement system that is working, other problems discussed in this report such as delays in reinstatement and the fact that very few workers awarded reinstatement actually return to work have a chilling effect on workers' exercise of the right to organize. Failure to swiftly remedy violations by the most determined anti-union employerssignals to other employers that they can get away with similar conduct. The dramatic rise in the frequency of discrimination against workers who try to organize (a four-fold increase since the 1960s) demonstrates that the labor law system has a rapidly diminishing deterrent effect on workers' rights violations.
Administrative Law Judges
Administrative law judges are independent of the board and of the general counsel. A corps of experienced labor law experts, the approximately seventy-five NLRB judges preside over unfair labor practice hearings in much the same way that civil and criminal court judges preside over non-jury trials (there are no juries in NLRB proceedings). The judges manage proceedings to give parties full opportunity to prosecute and defend while avoiding repetition and unnecessary prolonging of a hearing. Applying rules of evidence, they decide on the admissibility of evidence and objections by counsel in the examination and cross-examination of witnesses. They also evaluate the credibility of witnesses.
This last power is significant since most unfair labor practice hearings involve conflicting accounts of what happened. In the most common cases involving the firing of worker activists, workers charge-and the general counsel supports the charge in a complaint-that they were discharged because of organizing activity while the employer claims that the worker was fired for another reason unrelated to such activity. As a general principle, the NLRB or the courts do not overrule an administrative law judge's "credibility" findings because the findings rest on witnesses' demeanor at the hearing, something the reviewer of a written record cannot see.
The median time lapse between the issuance of a complaint and a hearing before an administrative law judge is six months.115 Depending on the complexity of the case the hearing can last several months. After a hearing ends, the judge reviews the evidence, the transcript of witnesses' testimony, and written briefs by the parties, and issues a written decision with findings of fact and conclusions of law on whether unfair labor practices occurred. As noted above, the findings of fact often depend on the judge's determinations on witnesses' credibility, since much testimony involves disputes about who said what or did what to whom. The median time between the close of the hearing and the judge's decision is four to five months.116
Appeal to the NLRB
A party aggrieved by an administrative law judge's decision can appeal it to the NLRB in Washington. The board reviews the evidence, the transcript, and the judge's written decision and opts to uphold it, reverse it, or modify it. The NLRB's own written decision can adopt the judge's ruling without comment or offer the board's separate reasoning based on its reading of the case record. The median time for the NLRB's decision is ten months. In complex or controversial cases the board often takes two or three years to issue its decision.117
Appeal to the Federal Courts
The NLRB's decision can be appealed to a U.S. federal circuit court of appeals in one of twelve geographically distinct parts of the country. Each circuit is composed of several states except the District of Columbia Circuit, which handles many NLRB appeal cases. Most appeals are decided by three-judge panels.
In the same way that the board reviewed the administrative law judge's decision, the court panel reviews the board's decision along with the hearing record and the judge's decision. While there is a general policy of deference to the administrative expertise of the NLRB, appeals courts sometimes make their own judgment on the merits of a case. Some circuit courts are more deferential to the NLRB, while others are more prone to discount the board's reasoning in a case. Subsequently, if the board disagrees with the holding of a circuit court's decision, it will apply that holding only in similar cases arising in the states within that circuit and not in the rest of the country. As a result, there are some conflicting applications of labor law in different parts of the country despite a general policy of uniformity under federal law.
Only a small percentage of unfair labor practice cases reach the stage of a trial and decision before an administrative law judge or go farther, to appeal stages before the NLRB or federal courts. But even these relatively few cases affect many workers. In all, administrative law judges completed 779 initial unfair labor practice hearings in 1998.118 Also in 1998, 873 cases from earlier years were resolved in appeal stages that follow the administrative law judge's hearing, either by the NLRB or by federal circuit courts of appeals.119 While unfair labor practice cases are not broken down by size of the employee groups involved, using as a proxy the average size of workplaces where NLRB elections were held (workplaces that most likely give rise to unfair labor practice cases)-sixty-six employees120-it can be estimated that more than 100,000 workers in the United States were affecteddirectly or indirectly by unfair labor practices cases that reached the stage of an administrative law judge hearing or beyond in 1998 alone.
Rulemaking and Adjudication
Unlike many federal agencies, the NLRB does not issue rules in the form of written regulations to supplement the basic content of labor laws governing labor-management relations. Instead, the board acts through adjudication of individual cases to set precedents for similar situations.
Case-by-case NLRB decisions, as upheld or modified by the courts, create a "common law" for organizing, collective bargaining, and the right to strike in the United States. Depending on an infinite variety of facts and circumstances in any situation, the same conduct-for example, a speech by a plant manager to workers in a captive-audience meeting, or the content of a leaflet issued by a union-might be lawful or unlawful. A high level of expertise in "board law" is needed by advocates advising workers and employers about how to behave in union organizing campaigns, by regional directors deciding what makes up an appropriate bargaining unit or whether to issue a complaint in an unfair labor practice case, and by administrative law judges deciding cases.
A common expression of U.S. labor law says that the NLRA is remedial, not punitive. The NLRB cannot penalize an employer for breaking the law. It can only order a "make-whole" remedy restoring the status quo ante as the remedy for unfair labor practices. The non-punitive character of U.S. labor law was established soon after adoption of the Wagner Act. In the Consolidated Edison case, the Supreme Court decided that punitive measures were not authorized by the NLRA.121 In the Republic Steel case, the court overturned a board order to the employer to reimburse the Works Project Administration, a federal jobs program, for the amount of wages subtracted from a back-pay remedy for workers who had been employed by the WPA while they were unlawfully discharged for union activity. The board's decision reasoned that the employer should not reap the benefit of the employees' interim earnings from public works employment. The court held that "[t]he Act is essentially remedial . . . The Act does not prescribe penalties or fines in vindication of public rights."122 Several commentators have observed that in neither case didthe Supreme Court cite any statutory language or legislative history to support the distinction between remedial and punitive measures.123
Not only are there no punitive measures for workers' rights violations. Employers can ignore orders by administrative law judges or by the NLRB and force the board to seek enforcement by a federal appeals court, adding years to the enforcement of its rulings. The NLRB has no enforcement authority of its own.
The standard remedy for an unfair labor practice is to have the employer post a notice at the workplace promising not to repeat the unlawful conduct. Discriminatory discharge cases are the most common category of charges filed with the NLRB. Here the standard remedy includes an order to reinstate victimized workers with back pay. However, any interim earnings fired workers received during the period of discharge are subtracted from the employer's back-pay liability.
In practice, many discriminatory discharge cases are settled with a small back-pay payment and workers' agreement not to return to the workplace. At a modest cost and with whatever minor embarrassment comes with posting a notice, the employer is rid of the most active union supporters, and the organizing campaign is stymied.
In the other most common unfair labor practice cases involving charges that employers refused to bargain in good faith with the workers' chosen representative,124 the remedy is an order to post a notice acknowledging the conduct and to return to the bargaining table and bargain in good faith. There is no further remedy, so the same cycle can repeat itself indefinitely without an agreement being reached.
In unfair labor practice cases where the severity of an employer's unlawful conduct makes standard remedies inappropriate, the NLRB is empowered under Section 10(j) of the NLRA to seek a federal court injunction to halt the unlawfulconduct. For example, a 10(j) injunction may be sought to obtain immediate reinstatement of workers fired for union activity. However, this power is rarely invoked. In 1998 the NLRB sought injunctions in only forty-five cases, and some of these included mandatory injunctions against unions to halt secondary boycott actions.125
Final orders of the NLRB are not self-enforcing. That is, the board must obtain a federal court order to enforce its decisions. In many cases, this adds months or years to the resolution of a case, leaving workers with no effective remedy while the case winds its way through the court system. Even when workers prevail at every stage of the NLRB process, no final remedy takes place until a court orders it. By that time, the remedy is often impotent.
The problem of delays is endemic in U.S. labor law practice. Using NLRB data on median time lapses for reaching various stages of legal proceedings in unfair labor practice cases that are deemed meritorious (as distinct from the 60-65 percent of cases that are not found to have merit, which are quickly disposed of), it takes nearly three months for an investigation to be wrapped up and a complaint to be issued. It then takes six months to finish a trial before an administrative law judge. Five more months go by before the judge issues his or her decision in the case. If that decision is appealed to the NLRB, it takes ten more months for the board to issue a ruling.126 By now two years have passed, and appeals can then be made to federal courts, where further delays of up to three years can be expected.
These are median time lapses. That is, half of all meritorious cases take longer than the time frames just noted. In general, these longer cases involve more complex disputes involving multiple unfair labor practices by employers that the NLRB found to be intent on preventing workers' organizing or preventing a contract being reached-exactly those cases with the most serious consequences for workers' freedom of association.
Over time, the slow unfolding of the legal mechanisms and the availability of appeal after appeal make workers' organizing efforts suffer from employee turnover and frustration and discouragement among workers who stay. Such sentiments were expressed by many workers interviewed by Human Rights Watch for this report. The result is a frequent denial of workers' fundamental rights.
86 See Hague v. C.I.O., 307 U.S. 496 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940).
87 See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
88 See NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), where the Supreme Court ruled that workers who engaged in a spontaneous walkout because their workplace was too cold had engaged in a protected concerted activity, even though they were not unionized or seeking to unionize. The employer had fired the workers for their concerted activity; the court upheld an NLRB reinstatement order.
89 Sometimes the selection of which union to call is completely haphazard, depending on nothing more than seeing a union's name in the newspaper, or the location of the nearest union office, knowing the largest union in the community, or having a friend who belongs to a union and calling that union. There is no requirement in the United States, as there is in many other countries, that only a union for a particular industry may organize workers in that industry. So, for example, some nurses have joined the steelworkers union. Some insurance company clerks have joined the autoworkers union. What unions call "jurisdiction" is jumbled, and unions often compete to represent the same group of workers. One of the main activities of the AFL-CIO, the federation of some seventy national unions, is to set rules and regulations for resolving unions' jurisdictional disputes so that they do not squander resources in internecine battles when 85 percent of U.S. workers are not represented by unions.
90 The concept of a defined "bargaining unit" is critical for understanding and applying U.S. labor law. Under the law, a group of workers seeking to form a union must have sufficient "community of interest" to bargain as a single group with the employer of their group. Litigation over bargaining unit definition (should a janitor be in the same unit with a skilled computer programmer, for example) and the employer-employee relationship (can "leased" employees from a temporary agency bargain with the employer at the place where they work) is often complex and causes serious delays in the exercise of freedom of association for workers in the United States.
91 Trade unionists attribute the dropoff in union support to employers' campaigns of fear and intimidation. Employers call workers' change in sentiment a sincere reversal after hearing management's side in the campaign.
92 Litigating employer "knowledge" of a worker's union activity is often difficult. Some unions take the step of sending the employer a letter early in the organizing effort, before a petition is filed, identifying organizing committee members so that the employer cannot claim lack of knowledge if a worker on the list suffers reprisals.
93 Captive-audience meetings are meetings held by management at the workplace on work time to inveigh against union formation and collective bargaining. Speeches, videos, movies, overhead projector presentations, role-playing, and even skits using professional actors are some of the features of management's captive-audience meetings.
94 In 1998, a majority of workers chose union representation in 48 percent of "select-or- reject bargaining rights" elections conducted by the NLRB. See NLRB 1998 Annual Report, p.13.
95 NLRA Section 8(a)(5); 8(b)(3).
96 See NLRB 1998 Annual Report, Table 2, p. 130.
97 See NLRB v. Montgomery Ward & Co., 133 F.2d 676 (9th Cir. 1943).
99 See section 8(d) of the NLRA.
100 See NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir. 1953), cert. denied, 346 U.S. 887 (1953).
101 The U.S. Supreme Court has ruled that the NLRB has no power to remedy an employer's refusal, made in bad faith for the sole purpose of avoiding an agreement, to accept or even to bargain over a proposal from workers other than to order the employer to resume bargaining. See H.K. Porter Co. v. NLRB, 397 U.S. 90 (1970).
102 See NLRB v. Katz, 369 U.S. 736 (1962).
103 Ibid., at 745.
104 For a thorough discussion, see Ellen J. Dannin, "Legislative Intent and Impasse Resolution under the National Labor Relations Act: Does Law Matter?", 15 Hofstra Labor and Employment Law Journal 11 (Fall 1997).
105 Se below, Chapter V., Coloradao Steelworker, the Right to Strike, and Permanent Replacements in U.S. Labor Law, for treatment of the permanent replacement doctrine.
106 Unless otherwise noted, reference to "U.S. labor law" or "U.S. labor law and practice" in this report involves the NLRA and related NLRB and federal court decisions and doctrine dealing with freedom of association, the right to organize, the right to bargain collectively, and the right to strike. Where laws or legal matters related to other worker issues like wages, hours or working conditions are discussed, those laws or matters will be separately identified.
107 Using the Bureau of Labor Statistics' Current Population Surveys, Human Rights Watch estimates that half of all workers in the United States come under NLRB jurisdiction. The rest are public employees, railway and airline employees, self-employed individuals, microenterprise workers (presumably under state "little NLRA " laws) and workers excluded from NLRB coverage including independent contractors, domestic workers, managers, and supervisors.
108 A comprehensive history of the NLRB is found in James A. Gross, Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994 (Philadelphia, Temple University Press 1995).
109 The famous labor song "Which Side Are You On?" contains the line "There are no neutrals there." In general, labor law professionals cast their scholarship or their working lot with unions or with management early in their careers and remain on one side of the line. As this report demonstrates, labor-management relations are highly contentious, and finding a middle ground on matters of policy or on appointments to the NLRB is more often a process of hard bargaining and painful compromise, not easy consensus.
110 See, for example, "The NLRB: An Agency In Crisis," Prepared Statement by Daniel V. Yager, Vice President and General Counsel, Labor Policy Association, before the Senate Labor and Human Resources Committee, September 17, 1996, on file with Human Rights Watch (arguing that the NLRB under President Clinton "has abandoned the neutrality and impartiality essential to the administration of a law intended to create a level playing field for management and labor").
111 See NLRB 1998 Annual Report, Table 23, p. 187.
112 In 1988-1998, the "merit factor" (cases where the investigation determined that an unfair labor practice occurred) ranged from 35 percent (1994) to 39.6 percent (1996). The merit factor in 1998 was 36.3 percent. See NLRB 1998 Annual Report, Chart 5, p. 9.
113 See Ibid., Table 4, p. 137.
114 Ibid., Chart 9, p.13.
115 See NLRB 1998 Annual Report, Table 23, p. 187.
118 Ibid., Table 3A, p. 132.
120 Ibid., p. 12.
121 Consolidated Edison v. NLRB, 305 U.S. 197 (1938).
122 Republic Steel Corp. v. NLRB, 311 U.S. 7 (1940).
123 See, for example, Jeffery A. Smisek, "New Remedies for Discriminatory Discharges of Union Adherents During Organizing Campaigns, 5 Industrial Relations Law Journal 564 (1983).
124 In 1998, 8,734 unfair labor practice charges were filed against employers alleging discrimination against workers exercising the right to freedom of association. Refusal to bargain allegations gave rise to 7,187 charges. Separately, a combination of discrimination and refusal to bargain were alleged in 2,113 charges. Together, these charges accounted for more than 75 percent of the total number of unfair labor practice charges against employers. In comparison, 38 discrimination charges, 172 refusal-to-bargain charges, and 2 combined charges were filed against unions. See NLRB 1998 Annual Report, Table 2, p. 130.
125 See NLRB 1998 Annual Report, p. 19. The report does not break down the nature of injunction proceedings and what type of unfair labor practices they entail.
126 Ibid., Table 23, p. 187.