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Weakness of Labor Law Remedies Undermines Workers’ Rights
Written by Erin Johansson   
June 30, 2004

What would prevent a corporation from lying to shareholders about profits if its only punishment was to promise it wouldn’t lie again?  Sadly, when a company violates labor law, often the company’s only punishment is to post a notice promising not to break the law again.  With remedies like this, there is little to deter employers from violating labor law.  In May 2004, the NLRB ordered just such a remedy, and if anything, it sent a message to nurses in Albany, NY, that the law does little to protect their rights. 

It wasn’t long after the nurses at Albany Medical Center began to organize a union that they began to experience the inadequacy of labor law.  On January 10, 2003, the nurses filed a petition with the National Labor Relations Board (NLRB) to schedule an election so they could choose union representation with the New York State United Teachers, AFT.  One week later, a senior manager at the hospital threatened to withhold a promised $2-an-hour raise if the nurses voted for the union.  Not surprisingly, the nurses voted against forming a union.  The union then filed an Unfair Labor Practice charge with the NLRB, alleging that manager’s threat to take back the promised wage increase was illegal and had interfered with the nurses’ freedom to organize.

On May 28, 2004, 456 days after the union election took place, the NLRB ruled the hospital violated section 8(a)(1) of the National Labor Relations Act.1 The NLRB affirmed an Administrative Law Judge decision that the nurses "came away with the clear understanding that the wage increase would not be implemented if the Union were certified."2

  According to the 2003 NLRB Performance Report 

At the end of FY 2003, there were 180 Unfair Labor Practice cases backlogged at the Board for more than 18 months.3

So what did the NLRB do?  It implemented its standard remedy.  The NLRB ordered the hospital to post a notice telling nurses that "we will not threaten that an announced $2-an-hour pay increase will have to be renegotiated or changed in any way if you select the Union as your collective-bargaining representative." 

And that’s it.  The hospital broke the law—threatened to revoke an upcoming salary increase if the nurses voted for the union—and all it must do is post a notice promising not to violate the law in the future.

It is likely that management knew its threat would scare nurses from supporting the union, and no serious repercussions would result if it was found guilty of violating the law. Today, in part because of unlawful managerial coercion, the Albany nurses are not represented by a union and still have no say in determining working conditions or patient care.  It is unlikely that a piece of paper taped to a wall will be much consolation to the nurses whose basic rights were violated.   

An employer determined to defeat a union organizing effort need not worry about getting caught violating the law, given the typical response by the NLRB.  The law fails to project to employers a serious expectation of compliance.  Unfortunately for workers, U.S. labor law will not protect their right to organize until there are meaningful remedies to deter violations.


1.  Albany Medical Center and John Michael Vitale and AMC Registered Professional Nurses NYSUT/AFT/AFL–CIO, Petitioners.  Cases 3–CA–24094 and 3–CA–24162, decided May 28, 2004.

2.  When an Unfair Labor Practice charge is filed with a regional office of the NLRB, and it is determined the charge has merit, a complaint is issued, and barring settlement, the case is presented to an Administrative Law Judge (ALJ). The ALJ decision can then be appealed to the Board members of the NLRB, who reviews the case and issues a decision.  This decision can then be appealed to a federal circuit court.

3.  This delay in resolving backlogged Unfair Labor Practice cases does not include the months or years that can pass before a case reaches the Board members of the NLRB, nor does it include the months or years that could follow if a decision is appealed to the federal courts.  The Board’s publicly stated goal for FY 2003 was to decide all cases pending 18 months or more by the end of the year, but decisions were issued in only 153 of the 333 oldest cases (46%), leaving 180 cases still pending that were more than 18 months old.  Source: National Labor Relations Board:  “FY 2003 Annual Performance Report,” for the Government Performance and Results Act of 1993, March 2004.


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