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Labor Board Further Victimizes the Victim
Written by Erin Johansson   
November 08, 2007

Workers' Rights Watch: Eye on the NLRB This past September, the National Labor Relations Board (NLRB) issued an unprecedented number of decisions undermining workers’ fundamental rights.  Included in the deluge of cases are two that further undermine the law’s already paltry provisions for compensating victims of illegal employer conduct.  The Bush-dominated Board has added new hurdles that workers must overcome before they can receive what employers have unlawfully taken away. 

Under the current law, there are no penalties, fines, or punitive sanctions for employers who break the law.  The only remedy for workers who are illegally fired that employers must “make victims whole” by providing backpay for the period between the firing and until the worker finds a new job.  But the Republican majority of the Board decided that workers who experience employer discrimination apparently have it too easy.

Grosvenor Resort

In Grosvenor Resort. the NLRB made it even cheaper for employers to fire union supporters to chill an organizing effort.  The Board created a new rule: if workers wait longer than two weeks after they are fired before attempting to find interim employment, they will be denied backpay for that period.  The majority rationale of not wanting to “reward idleness” ignores the dissent’s assertion that the decision “produces an inadequate remedy for substantial violations of the law, and thus it will embolden others to commit violations that would otherwise result in more substantial backpay obligations.” 

St. George Warehouse 

In a second, even more onerous decision, the Republican majority of the Board reversed a 45-year precedent to make it more difficult for fired workers to collect backpay.  In St. George Warehouse, the Board relieved employers of the burden of proving that employees they fired did not adequately search for work, placing it instead on both the victims and the NLRB General Counsel arguing their case.  If the workers cannot prove they took reasonable steps to find work after they were fired, the employer is not obligated to pay backpay.  The dissenting members wrote that the result of the decision is to “place a stumbling block before discriminatees and, ultimately, to frustrate enforcement of the National Labor Relations Act.”

These backpay rulings are joined by dozens of other decisions issued by the Board in September that drastically revoke protections for workers.  The Republican majority’s ruling in Dana Corp. overturned 40 years of precedent and gave a minority of anti-union employees the right to a decertification election immediately after their employer voluntarily grants union representation upon a showing of majority support.  This decision threatens to undermine the organizing successes that have come about as employers and workers abandon the delay-ridden NLRB election process for majority sign-up.  Other precedent-reversing decisions issued by the Board stripped protections from workers exercising their rights to collectively bargain and strike. 

This latest onslaught of Board decisions bolsters the need for Congress to pass the Employee Free Choice Act, legislation that puts teeth back into labor law by increasing backpay awards and expanding the power of the General Counsel to reinstate workers immediately after they are fired.  These and other provisions of the bill would reverse much of the damage done by nearly seven years of anti-worker rulings out of the NLRB.

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