Delays and Loopholes: How US Labor Law is Failing Workers

By Steve Wishnia

U.S. labor law is supposed to protect workers’ right to organize — but employers regularly evade it by exploiting the slow-moving system and its weak or nonexistent penalties for violations, leading labor lawyers say.

“The remedies for employer conduct are exceedingly inadequate,” says John D’Elia, assistant general counsel for the Service Employees International Union.

“No matter what this board does, the next board can undo it,” says AFL-CIO associate general counsel Maneesh Sharma. Without changing federal labor law, “it’s just going to get worse.”

The National Labor Relations Act of 1935, the core federal labor law, has no penalties even for “mass firing of union supporters,” D’Elia says, except for “make-whole remedies” such as ordering the employer to rehire the fired workers and give them back pay. And if the worker took another job while the case was being resolved, the amount they earned is deducted from the back-pay award.

“I don’t think very many people ever get to go back to work,” says Seth Goldstein, an Office and Professional Employees International Union lawyer who is lead attorney for the Amazon Labor Union.

The law is so weak, he says, that employers can decide it’s worth the cost to bust a union, he says. “Management thinks it’s a joke. If there were penalties, employers would think twice.”

Unlike in discrimination or wage-theft cases, workers can’t sue employers who interfere with what the law calls “concerted activities” in the courts, D’Elia explains. They must file a complaint with the National Labor Relations Board. If the board believes there’s evidence the employer acted illegally, the case will go to an administrative-law judge. If that judge rules in favor of the union, the employer can appeal to the five-member national board.

If the union wins its case at either level, however, “there is no legally binding order the employer must follow,” D’Elia says. The NLRB has to go to a federal appeals court to get an order enforcing the judgment — and the employer can appeal that, too.

Eight Years, No Resolution

The process can take years. D’Elia is representing four San Francisco janitors who were fired in 2014 for picketing a downtown office building during a strike. The workers, seeking to get SEIU Local 87 recognized as their union, had walked out after an office cleaning subcontractor cut their hours and told them that any women who wanted to work a full shift would have to have sex with him.

Local 87 filed a complaint with the NLRB, and in 2016, the administrative-law judge ruled that the janitors had been illegally fired. Preferred Building Services, the cleaning contractor, appealed. In 2018, the national board — then with a 3-2 Republican majority — dismissed the complaint, holding that the workers had engaged in illegal “secondary picketing” because they’d handed out flyers calling on other businesses in the building to help get Preferred to treat the janitors fairly.

Local 87 appealed to the federal courts. More than two years later, in April 2021, a three-judge panel on the Ninth Circuit Court of Appeals ruled that the picketing had been legal — and sent the case back to the NLRB.

Preferred is demanding that the NLRB dismiss the case again. It is arguing that it has no responsibility because the fired workers were employed by its subcontractor, Rafael Ortiz.

Delaying tactics

Even if employers don’t have a valid case, dragging out the process is often an effective strategy.

“It gives them time to coerce and intimidate workers,” says AFL-CIO associate general counsel Maneesh Sharma. “The longer the process takes, the more time they have to run their anti-union campaigns.”

That includes, he says, not just captive-audience meetings, which unions don’t have equal access to counter, but “bombarding” workers with texts and emails. (Amazon used “inSTALLments,” anti-union signs on the inside of toilet-stall doors.) The company can change the hours of union supporters, discipline them, or fire them.

There is very little incentive for employers not to break the law, Sharma says. Union drives can fizzle out if workers get discouraged after two or three years with no results.

That is “totally against” the National Labor Relations Act’s purpose of encouraging fair collective bargaining, he adds, but the process isn’t geared to deal with how delays undermine the urgency of union campaigns.

The NLRA, Goldstein adds, also does not address the legally complex ways employers use to claim that workers can’t legally form unions, such as gig work, calling workers independent contractors, and subcontracting.

The main areas for employer challenges are the election process — such as disputing who is an eligible member of the bargaining unit — and unfair-labor-practice complaints, says D’Elia.

“They litigate every fact,” he says. “Their purpose is not to win, but to delay.”

Amazon in April tried to overturn the Amazon Labor Union’s victory at its JFK8 warehouse on Staten Island by alleging that the NLRB was biased in favor of the union. On Sept. 1, an NLRB official recommended dismissing the case, saying the company had failed to prove its accusations. Starbucks filed a similar case in August, demanding that all mail-in elections for union representation be suspended.

But organizing to win an election is “only the first step,” Sharma says. The new union must then negotiate a first contract—and a “shocking number” never do.

A 2008 study by the Massachusetts Institute of Technology’s Sloan School of Management found that in the more than 8,000 workplaces where unions won elections between 1999 and 2004, only 56% reached a first contract.

In 2015, after United Auto Workers Local 42 had lost a vote at Volkswagen’s Chattanooga, Tennessee plant, the factory’s skilled maintenance workers voted to join the UAW as a separate bargaining unit. VW refused to bargain with them. Workers at the United Metro Energy Corporation’s Brooklyn fuel terminal, who voted to join Teamsters Local 553 in 2019, have been on strike for almost a year and a half to demand their first contract.

There is no penalty for employers who bargain in bad faith, says D’Elia. In June, however, NLRB general counsel Jennifer Abruzzo’s office filed a motion to overturn a 1970 decision that limits the board to ordering the parties back to the table. It also proposed that those employers should pay compensation for wages and benefits workers would have gotten from fair bargaining.

All three lawyers praise Abruzzo for trying to speed up the process by using Section 10(j) of the NLRA, which enables the NLRB to seek injunctions against unfair labor practices in federal courts if its normal processes would be too slow to remedy the alleged violations. In August, a federal judge in Tennessee ordered Starbucks to rehire seven union supporters it had fired in Memphis. The board has filed a similar suit in Buffalo.

Still, the injunction process takes months, says Sharma. And the NLRB is significantly underfunded. Its budget has not increased since 2014, and its staff has shrunk through attrition. The NLRB’s regional office in Brooklyn is now handling only cases from Starbucks and Amazon, says Goldstein.

The NLRB’s policies also swing back and forth depending on which political party holds a majority on the national board. The board has reversed its positions on when employers can be held responsible as “joint employers” for conditions at their contractors or franchises, and on whether graduate-student workers have the right to form unions multiple times in the past 20 years. The 3-2 Republican majority that in 2018 dismissed the fired Preferred Services janitors’ case included two union-busting attorneys appointed by Donald Trump.

“No matter what this board does, the next board can undo it,” says Sharma. Without changing federal labor law, “it’s just going to get worse.”

Remedies?

The Protecting the Right to Organize Act (PRO Act), passed by the House last year, would have fixed many of those issues. It would have imposed fines of up to $50,000 for violating workers’ right to collective action, and given victims the right to sue for damages; made NLRB orders self-enforcing; and required mediation if new unions don’t reach a first contract within 90 days, with mandatory arbitration if mediation doesn’t work. (It also would have banned captive-audience meetings, cracked down on misclassifying workers as “independent contractors,” and voided state “right to work for less” laws.)

The PRO Act, however, sank in the same Senate morass as expanding Medicare to cover vision, hearing, and dental care.

That leaves solidarity, says Goldstein. To succeed, organizing campaigns “have to be really strong on the shop floor.” That can’t be accomplished from the outside, but they also need solidarity from more established unions. “You work for your members by working for the working class,” he says.

“We should use the law, but we shouldn’t rely on it,” he adds. “We’re expecting politicians to save us, but the only one who can save us is the working class.”

Still, he says, the union resurgence of the past few years has made him hopeful for the first time since the early 1990s.

D’Elia shares that optimism. There are “seriously inspiring” things going on, he says. “People have had it and want more respect.” Even under unfair laws, they’re “still getting results.”