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The Failure of Labor Law
Written by Erin Johansson   
November 12, 2007

In 1984, a Subcommittee of the House of Representatives adopted a report called "The Failure of Labor Law—A Betrayal of American Workers," which stated the National Labor Relations Act (NLRA) “has ceased to accomplish its purpose…. The evidence is clear that the law does not encourage collective bargaining.  Rather it has become an impediment.”  But first and foremost, the law doesn’t even begin to protect the fundamental right of workers to organize unions. 

For example… 

  • The NLRA does little, if anything, to discourage the intimidation, threats, and reprisal faced by workers seeking union representation.  Anti-union consultants, advisors, and lawyers have developed aggressive approaches to stop workers from forming unions through harassing and punitive tactics.  Some unionbusters advise employers to plainly violate labor law, and some advise companies to adopt approaches which are considered lawful, but clearly violate the law’s intentions.  Either way, the strategies are effective in silencing workers who wish to form unions, and in deterring egregious employers.

  • The NLRA provides for weak remedies that take far too long to implement.  For example, a worker illegally fired for supporting a union is entitled to reinstatement and backpay.  But it can take years before reinstatement is offered and the employers must only “make victims whole” by providing backpay for the period between the firing and until the worker finds a new job.  When an illegal firing causes a victim of unlawful conduct to lose a house, or a car, or health insurance—the law provides no remedy.

  • The NLRA creates the potential for long delays in finalizing the outcome of union representation elections.  When workers choose to form a union, an employer can readily delay the implementation of that outcome for years by appealing to the NLRB.  Remember the crisis caused by the five-week delay in the outcome of Bush-Gore election?  In union representation elections, an employer can usually assure a delay that is 20 times longer.  And while a company can easily afford to drag out the legal process, workers simply cannot.

  • The NLRA ultimately fails to prevent violations of the law.  If the NLRB finds that an employer illegally fired an employee for their support of a union, the employer is given a slap on the wrist.  The usual ‘punishment:’ providing the terminated worker with backpay and posting a notice in the workplace alerting workers they won’t commit the same violation again.  Because the NLRA does little to discourage illegal behavior or legal maneuvers which thwart the intention of the law, few incentives exist for employers to stop discriminating against, harassing, or firing workers who support a union.