Employers break labor law but get away with it

Bill Knight column for 7-13, 14 or 15, 2020

                       

Despite President Trump’s talk of “law and order” during a spring of pandemic and civil uprisings, U.S. labor relations suffer from such widespread lawlessness committed by unrepentant employers that labor law reform is desperately needed to maintain order.

About 30% of Unfair Labor Practice (ULP) charges analyzed by the Economic Policy Institute (EPI) were about employer improper surveillance, harassment or threats against workers. Some 30% involved allegations of illegal discipline, with one in five elections affected by charges of illegally firing workers for supporting unionization.

In its report, EPI showed that employers are bold in their efforts to prevent workers from their right to organize. Records of the National Labor Relations Board (NLRB), which is supposed to supervise private-sector labor rights and union elections, show that in more than 4 out of 10 union elections in 2016 and 2017, employers were charged with Unfair Labor Practices about sabotaging votes and illegally punishing pro-union workers.

EPI’s 17-page report shows that in union elections the NLRB oversaw in 2014-2017, 41.5% of employers were charged with violating federal law, 29.6% with illegally firing workers, 29.3% with illegally disciplining workers or changing their duties, and 29.2% with illegally threatening, coercing or retaliating.

The findings confirm a 2009 study by author Kate Bronfenbrenner, Director of Labor Education Research at Cornell University’s School of Industrial and Labor Relations, and they also suggest such anti-union schemes are increasing.

Bronfenbrenner had surveyed workers involved in unionization drives between 1999 and 2003 and found 57% of their employers had threatened to close the business if workers unionized, 47% threatened to cut wages or benefits; and 34% fired workers who supported unionization.

That’s all illegal. Other laws prohibit employers from interfering with labor organizing, threats of job loss or of shutting down companies if workers unionize, discriminating against workers due to union activity, refusing to reinstate workers to appropriate jobs after legal strikes, favoring scabs during a legal strike, demoting workers for circulating union petitions, closing one operation to fire workers but launching the same operation with other workers at another site, and punishing workers for filing Unfair Labor Practice charges.

EPI notes that charges often don’t result in NLRB complaints, which almost always are mild anyway. The Board usually orders lawbreakers to stop the illegal actions and maybe post a sign recognizing violations, or perhaps require companies to remedy the situation (which in the case of a union election means starting over). Very rarely does the NLRB use its power to impose injunctive relief.

Therefore, though the Board is supposed to act as the neutral arbiter of labor relations, it has little leverage over lawbreakers. If a company has acted illegally, the NLRB can’t even force it to pay damages except for back pay and reinstatement. Plus, the five-member NLRB now has three Republicans (William Emanuel, Marvin Kaplan and John Ring) and two vacancies.

Meanwhile, a majority of Americans support unions and collective bargaining, according to a recent poll from Morning Consult: 56% say they support labor unions, 77% support workers’ right to bargain collectively for pay, health care and other benefits, and hefty majorities of Democrats (86%) and Republicans (73%) back specific priorities like hours and working conditions.

Therefore, reform would probably be popular – and it’s alive. The bipartisan PRO (Protecting the Right to Organize) Act – introduced by Rep. Bobby Scott (D-Va.) and co-sponsored by 218 member of Congress – was approved by the House 224-194 in February. Five Republicans joined the Democratic majority: Reps. Brian Fitzpatrick (Pa.), John Katko (N.Y.), Chris Smith (N.J. – who originally introduced the measure in 2018), Jeff Van Drew (N.J.), and Don Young (Alaska). Nevertheless, Senate Majority Leader Mitch McConnell refuses to permit even debate on the bill.

“The PRO Act will help ensure that workers have a meaningful right to organize and bargain collectively by streamlining the process when workers form a union, bolstering workers’ chances of success at negotiating a first agreement, and holding employers accountable when they violate the law,” says the EPI report, written by Celine McNicholas, Margaret Poydock, Julia Wolfe, Ben Zipperer, Gordon Lafer, and Lola Loustaunau. “Indeed, the PRO Act addresses many of the tactics of aggressive employer opposition. This type of legislative reform is needed to restore workers’ rights to join together and bargain for a better life.

“However,” it continues. “policymakers must do more. They must prioritize a workers’ rights agenda and hold agencies responsible for enforcing worker protections accountable.”