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Labor Law Remedies Come Too Little, Too Late
Written by Erin Johansson   
April 30, 2004

David Snead worked for Hewlett Packard (HP) for years with a clean work record.  Then in February 2002, he discussed the idea of forming a union with his co-workers. Not long after his supervisors learned of David’s efforts to organize a union, they illegally fired him for misconduct he had not committed, according to a recently issued decision of the National Labor Relations Board (NLRB).

According to the NLRB decision, David “became an open, visible advocate for the Union,” in May 2002.1  In August, two weeks after David and other employees began asking their coworkers to sign union authorizations cards, HP fired David.  The NLRB found HP’s stated reason for the firing was not consistent with company policy.  The NLRB concluded, “The reason given by the [employer] for its discharge of David was false, both because David had not committed the misconduct with which he was charged and because the [employer] did not believe or care whether he had.”2

According to the 2002 NLRB Annual Report

In 50% of the decisions issued by the NLRB in 2002 over unfair labor practice charges, workers waited more than 889 days for the NLRB to reach a decision.*

To remedy the violation, the NLRB ordered the company to ‘cease and desist’ from committing future violations of the law, and to reinstate David with back pay offset by interim earnings (what he would have earned at HP had he not been fired, minus the salary he earned in the interim).  In this case, the NLRB acted more ‘quickly’ than usual, having issued its decision on March 29, 2004, approximately 13 months after unfair labor practice charges were brought against HP.  However, if it chooses, HP can further appeal the case to the federal courts, potentially adding additional years of delay before a final remedy can be implemented.  As the example of Verna Bader’s case  illustrates, this wait for justice could take decades. 

In the meantime, what’s happened to the union organizing campaign?  After the illegal firing it never got off the ground.  David’s firing is an example of a common tactic used by employers because “the ‘chilling’ effect created by sacking activists can halt a union campaign in its tracks.”3 And even if the NLRB decision provides some relief to David, it hardly suggests to his coworkers that they are protected if they support a union.  David’s coworkers are no closer to union representation today than they were two years ago. 

David’s story is too typical of what happens to workers when they seek to organize a union.   Employees can readily see that the right to support a union is easily undermined by an employer’s betrayal of labor law.  For breaking the law or thwarting the intention of the law, employers may pay small price, but the damage is done.  A remedy will be, at best, too little and too late.

Endnotes

1.  Hewlett Packard Company and United Steel Workers of America, AFL–CIO, CLC.  Case 25–CA–28591, decided March 29, 2004.
2.  Ibid.
3.  Logan, John. "Consultants, Lawyers, and the 'Union Free' Movement in the USA Since the 1970s," Industrial Relations Journal, vol. 33, no. 3 2002.

* It should be noted that a Board decision can be appealed to the federal courts, typically adding more than a year before implementation of a remedy is possible. If all appeals are exercised, the typical time it takes to get a final resolution of the charge is more than three years. Many cases settle for less than a full remedy before a final Board decision, often because wronged employees can't afford to wait 3+ years for the full remedy to which they are entitled.