NEW UNIONIZATION PUSH Two of the labor movement's main allies in Congress, Senator Edward M. Kennedy of Massachusetts and Representative George Miller of California, both Democrats, introduced a bill that would allow unions to organize a workplace without an election and by simply getting 50.1 percent of the workers to sign cards saying they want a union. It would also require employers to pay triple back pay when they illegally fired workers for supporting a union. Steven Greenhouse (NYT)
both of the proposed changes to federal labor law is extremely important and desperately needed. the triple-back pay provision is particularly important. under current law, the national labor relations act authorizes the award of back pay to employees who are fired because of their union activity. thus, if a judge finds that an individual was fired for that reason, the most the company can be ordered to do is to reinstate the individual and to pay the employee back pay equal to whatever he/she lost during the time he/she was not working. in other words, it is simply a "make whole" remedy, designed to put the terminated employee in exactly the same position he or she would have been in if he or she was never terminated.
while this may sound sufficient to deter employers from firing union activists, in practice it has little deterrent effect. one problem is the procedural hurdles an employee or the union must navigate before an employer is forced to make an employee whole. say jane is an employee who is fired for her union activity. the first step is for jane or her union to file a charge with the national labor relations board alleging that the decision to terminate her violated section 8(a)(3) of the national labor relations act. the n.l.r.b. is a bifurcated agency, with both a judicial arm and a prosecutorial arm. when a charge is filed, the prosecutorial arm of the agency investigates to find out if there is evidence that the employer fired jane because of her union activity. jane and her union are asked to submit evidence in support of the charge, and the employer is also asked to submit evidence that jane's termination was for a non-discriminatory reason. at the end of the investigation, the prosecutorial arm of the n.l.r.b. uses its discretion to decide whether it will prosecute the case on behalf of the terminated employee.
one problem is that it is jane and the union's burden of convincing the board that jane's termination was improper. they have to produce the evidence to prove that the employer had improper motive. the employer, meanwhile, controls virtually all of the records from the workplace, it can give statements from the supervisors who fired the employee and can comb the employee's personnel file, its production records, etc. for any reason to justify her termination that does not involve her union activity. employers can almost always find something (and it is extremely hard to ever prove that records were not altered to "document" a non-discriminatory reason for the discharge)
on top of that, when the nlrb decides to prosecute a case on behalf of a terminated employee, it bears the costs of litigating the issue. as the nlrb's budget shrinks, the bar that it sets for deciding when to pursue a case progressively rises. in the past, all a charging party had to show was that there was reason to believe that the termination violated the law. now, the board must conclude that it has a good chance of winning if it decides to prosecute. in practice this means you really need smoking gun-type evidence in order for the n.l.r.b. to even take the case before a judge.
and if a case is finally litigated, it is a very slow process. it takes months to get a hearing before an administrative law judge, and the decision of the a.l.j. can be appealed to the n.l.r.b. in washington, and ultimately to the federal courts. this process takes years. even if the termination is ultimately found to be unlawful, employers rarely pay the full back pay. when an employee is out of work that long, he or she is often happy to take a settlement that amounts to a fraction of the total amount that would really be due. often employers who lose offer to drop their appeals if the employee agrees to a small settlement. out-of-work employees often cannot afford not to accept. (and it is very frustrating as a lawyer to see a case where we really have the goods on the employer settle in a way that lets the employer off so easily).
meanwhile, by the time these termination cases are resolved, the unionization campaign that triggered the termination is long over. employers know that unionized workplaces pay higher wages and benefits than non-union workplaces. they also know that firing the employees behind a unionization drive can be extremely effective at undermining the union campaign. terminations both rob the union of their advocates among the employees and send a message to the other employees about the price they will pay if they publicly support the union. under the current law, it simply makes economic sense to fire all the union supporters as soon as the employer learns of their identity. whatever back pay award the employer may be forced to pay will probably amount to less than the increases in wages or benefits they will end up paying if the workplace becomes unionized. one management-side labor attorney i deal with once told me that he counsels his clients to find and terminate union supporters even though to do so would be illegal because in the long run it will save their client's money.
alright, i spent a long time discussing the triple damages proposal, i don't really have time to get into the card check issue. maybe i will find time later. in any case, kennedy and miller's proposed changes to the national labor relations act is badly needed. i have no illusions that the bill will never pass this congress or be signed by this president. hopefully, they can reintroduce it once something better comes along.
