Class Bias on Display at the D.C. Circuit

Andrew Strom

Andrew Strom is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY.

When it comes to imposing remedies, the NLRB is as toothless as an infant.  When an employer issues threats to its workers, or when it refuses to bargain with a newly certified union, the standard remedy is an order to cease and desist, plus a requirement that the employer post a notice assuring workers that it will respect their rights in the future.  If the employer has engaged in especially egregious or repeat violations, the NLRB may look into its quiver, and pull out the “extraordinary remedy” of the notice reading.  This remedy requires the employer to assemble the workers and read the remedial notice aloud.  For reasons that I think can only be explained by class bias, judges on the D.C.  Circuit have long taken issue with this remedy, as demonstrated in a case the court decided last week.

Starting in 2002, HTH Corporation, which operates the Pacific Beach Hotel in Honolulu, has repeatedly broken the law by interfering with its employees’ union organizing efforts.  After the NLRB obtained a preliminary injunction against HTH, the company brazenly violated the court order, and when confronted with the violation, Regional Vice President Robert Minicola said, “F*** the judge.  He’s wrong.”  Minicola was also personally involved in almost all of the employer’s numerous illegal acts.  This was the backdrop for the Board ordering the employer to have its CEO or Minicola read the remedial notice to the employees.  In the alternative, the Board gave the employer the option of allowing an NLRB employee to read the notice to the workers.

Since the Board gave the employer the option of, in the court’s words, “punting the task to a Board employee,” the D.C.  Circuit upheld the notice reading, but before doing so, it devoted seven pages of dicta to a discussion of the “dignity” interests implicated by requiring an employer to read the remedial notice.  Judge Williams quoted at length from a dissenting opinion by then-Judge Ruth Bader Ginsburg, who described this remedy as a “forced, public confession of sins,” and declared it humiliating and degrading.  Judge Williams went on to declare that the remedy communicates the following subtext:

“You see before you one of your managers, who normally has a responsibility to make important choices to as to your work.  But who is he?  Not merely is he a lawbreaker, but he is a pathetic creature who can, at the behest of federal officials (and not especially lofty ones at that), be forced to spout lines they have put in his mouth.  He is not even a parrot who can choose when to speak; he is a puppet who speaks on command words that he may well abominate.  We have successfully turned him into a semblance of a human being.”

In other words, anyone who is required to speak words on command is now sub-human.  What does this say about the dignity of workers in the service industry who are routinely required to “speak words on command that they [they] may well abominate?” Fast food restaurant, hotels, retail stores, and call centers regularly require workers to adhere to scripts.  As a result, cashiers repeatedly call for the “following guest” even if they would much prefer to say “next customer.”

And what about criminal defendants who must offer up an admission of wrongdoing in order to gain the benefit of a plea bargain? As Tim Lynch of the Cato Institute has argued, plea bargaining may extort guilty pleas from individuals who are actually innocent.  This means sometimes innocent people will make a court-approved “forced, public confession of sins” to avoid the threat of a longer prison sentence.  At any rate, the notices at issue in NLRB cases do not include even an implied admission of wrongdoing.  In the earliest days of the NLRA, the notices required employers to agree to “cease and desist” from their illegal acts.  In 1940, Judge Learned Hand objected that this amounted to a forced admission of wrongdoing, and ever since then, the Board only requires employers to notify workers that the employer “will not” engage in specified illegal conduct.

As a matter of principle, it’s hard to understand the difference between requiring an employer to post a notice informing employees that it “will not” engage in various acts versus requiring the employer to read the notice to assembled employees.  But, there are a number of practical reasons why the Board ought to routinely require a public reading of the notice.  First, tens of millions of workers either can’t read or read below a fifth grade level.  The U.S.  Department of Health and Human Services has found that 35% of adults have basic or below basic reading skills, and these individuals are unlikely to use written materials to obtain information.  Second, even people who can read often don’t – it’s no secret that most people get their news from television rather than newspapers.  Third, even for highly literate individuals, in-person communication is far more effective than just issuing a memo.  If an employer actually wanted workers to pay attention to the NLRB notices does anyone think the employer would simply post the notice on a bulletin board?

The class bias of the judges is especially apparent because judges object to the requirement that a named individual read the notice, but don’t seem to mind if the employer can impose the obligation on a lower-ranking official.  For instance, for all of Justice Ginsburg’s rhetoric about humiliation and dignity, her solution was to allow the company president to designate a responsible officer to read it on his behalf.  If it’s humiliating for the boss to read the notice, wouldn’t it be more humiliating to be the person who the boss can compel to speak on command? In reading the court decisions regarding the notice reading requirement, I can’t help but think that many judges, even liberals like Justice Ginsburg, can identify with company executives, but not with workers.  Otherwise, they might realize that whatever dignity interests are at stake when managers are required to publicly acknowledge that they will respect workers’ rights are far outweighed by the benefits to workers from seeing with their own eyes that their boss is not above the law.

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