Losing the NLRA Would Be Labor’s Loss – And Here’s Two Reasons Why – Reason 1.

It is disheartening to hear many in labor claim that unions would be better off without the National Labor Relations Act (NLRA). I’ve been shouted at by more union representatives than I could shake a stick at – if I were the sort of person who shook sticks at people. But let me give a few reasons why I think this position needs to be reconsidered. I am not asking those who feel strongly about this issue to have a complete change of heart. What I am asking for is a reality check on some of the charges made against the NLRA and National Labor Relations Board (NLRB). I’m going to talk about charges of delay (in part two) and imagining what life would be like for unions without the NLRA here.

First, what would life be like without the NLRB?

To answer that question, consider what the NLRB is doing and the impact of losing its functions. You can get a taste of what this means if you compare the money the NLRB recovered for employees this past year versus the year before.

In the fiscal year just ended, the NLRB recovered $70,001,594 on behalf of employees. That amount is down from FY 2007, when it was $110,388,806. Part of the reason it may be down is because of the NLRB boycott many unions have decided is in their interest. I’m not sure exactly how not filing charges is in unions’ interest – or more important, in the interest of their members – because for the rights the NLRA protects, there are NO other remedies.

So by boycotting the NLRB, unions chose to forego remedies for people whose rights were violated and who would have been entitled to some money.

One reason given for the boycott is that the remedies are weak. I gather the logic is that somehow not going to the NLRB will make the remedies stronger?

OK. So let me see if I understand this argument. This money goes to employees, because it is employees that the NLRA protects. To show the NLRB that it needs to have better remedies, unions decided to opt for nothing rather than something for employees. And remember that if unions are making the decision about not to file charges it is because these are probably employees who have been harmed by participating in a union organizing drive.

Sure it would be great if remedies were higher and the employees got more, but each of the employees who got some money are better off with it than without it. Having grown up very poor, I remember what is like when there are more places than dollars to put there. I wonder whether the unions who say they support employee free choice explained to the employees why charges were not being filed and exactly what would be lost by making this choice.

Unions and the tender mercies of the common law

Now for a truly scary look at what life would be like without the NLRB, consider a recent case from the New York Court of Appeals – Helmsley-Spear, Inc. v. Fishman, No. 164 (N.Y. Ct. App. Nov. 24, 2008).

In this case, a union president and others were trying to organize Copstat’s employees in New York City. Part of the organization campaign involved leafletting and loud demonstrations including banging on metal pots and tin cans, over 18 days in November 2005 and February 2006. The union and union president were sued by the Copstat for a state tort – nuisance.

Here is what happened according to the court decision.

In 2005, defendants Michael Fishman, as President of SEIU Local 32B-32J, AFL-CIO, SEIU Local 32B-32J, AFL-CIO, and John Does 1-7 (collectively, “the Union”) began a concerted effort to organize Copstat employees. As part of that endeavor, on 18 separate days between November 2005 and February 2006, members of the Union assembled outside certain entrances of the ESB, distributing leaflets while one or more of the members drummed on a plastic container, metal pot or tin can.

Copstat also filed NLRB charges against the union for the noise. And what did the NLRB do?

The NLRB dismissed the charges on the grounds that this sort of demonstration connected with union organizing is not coercive and does not violate the NLRA.

An NLRB regional director dismissed Copstat’s charges, and the agency’s general counsel sustained the dismissals. Pigott said the NLRB concluded that the union was engaged in “protected handbilling or leafleting” and that “use of the drum on the days in question … was [not] sufficient to transform the leafleting activity into unlawful conduct.”

This should have meant that the court lawsuit had to be dismissed. Why? Because when the federal law protects activities, state law is preempted. What that should have meant here is that the state court case had to be dismissed. The NLRB is the expert agency whose job it is to interpret the NLRA. The state courts have to follow that interpretation.

Now, the highest NY court has held 4-2 not to dismiss the nuisance case. But they were absolutely wrong on the way they interpreted the law. They decided essentially to rewrite decades of NLRB and US Supreme Court holdings.

Why they did not understand basic labor law is another issue, but for this discussion it does not matter. There is a much more important lesson.

However, the important issue here is that if there were no NLRA, that state law that was used to crush unions, law like the nuisance law here, would be the law. There would be nothing to preempt it. It would once again be open season on union organizing, union organizers, and uppity employees – all of whom are now protected.

We would be back to the tender mercies of the common law, which has never never been a friend to labor. Or employees. If you don’t believe me, I suggest you read Charles O. Gregory’s book, Labor and the Law, a tale of how employers have used the common law and the state police system to defeat unionism.

So before supporting the repeal of the NLRA, consider what unions and workers stand to lose.

The no-not-the-NLRA judges in the majority were Judges Eugene F. Pigott, Judith S. Kaye, Robert S. Smith, and Theodore T. Jones. The judges who have a clue about the NLRA were dissenters Judge Susan P. Read and Victoria A. Graffeo

So remember, were the NLRA to be repealed, the dissent would be have to join the majority here and find that the union committed a tort and owes damages to the employer they were trying to unionize.

Coda: Now preemption law is never easy, and after several stabs at trying to summarize it accurately and succinctly, I decided just to refer those who want more details to read the opinions.

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