Labor Law is Still Broken

Andrew Strom

Andrew Strom has been a union lawyer for more than 25 years. He is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY. He is the author of Caught in a Vicious Cycle: A Weak Labor Movement Emboldens the Ruling Class, 16 U.St. Thomas L.J. 19 (2019); Boeing and the NLRB: A Sixty-Four Year-old Time Bomb Explodes, 68 National Lawyers Guild Review 109 (2011); and Rethinking the NLRB’s Approach to Union Recognition Agreements, 15 Berkeley J. Emp. &; Lab. L. 50 (1994), and has written for Dissent and Dollars and Sense. He also taught advanced legal writing at Fordham Law School. He received his J.D. magna cum laude from Harvard Law School. The views he expresses on this blog are his personal views, and should not be attributed to SEIU Local 32BJ.

Although we are unlikely to hear the Presidential candidates discuss this issue, a decision issued last week by the D.C. Circuit highlights the ongoing need for labor law reform.  The case, Ozburn-Hessey Logistics, LLC v. NLRB, demonstrates how employers can flout the law with impunity, frustrating the efforts of workers who want to organize and bargain collectively.

All of the following facts come from the court’s decision:  In 2009, workers began an organizing campaign at the employer’s warehouse facilities in Memphis, Tennessee.  The employer responded to the organizing campaign with a series of unlawful acts, including threatening employees, confiscating union materials, and disciplining union supporters.  A representation election took place in March 2010; the workers voted against unionization, but that the election was tainted by the employer’s unfair labor practices.  The workers regrouped and voted to unionize on July 27, 2011, even though the employer continued to commit illegal acts, including firing a union supporter and issuing a final warning to another.

When the election was over, the employer refused to bargain, forcing the union to file charges with the NLRB.  The refusal to bargain case was combined with the case involving the illegal firing and discipline, and, now five years later, the D.C. Circuit ruled against the employer on every issue.  In other words, for the last five years, the employer has unjustifiably deprived its workers of their federally protected right to engage in collective bargaining.  What are the consequences for the employer?  Exactly nothing – the only remedy is a prospective bargaining order.  What compensation will the workers receive for this deprivation of their rights?  Again, nothing!

As we approach the Presidential election, think about the outrage if the incumbent were allowed to stay in office while we spend five years litigating the legitimacy of the election (and to further the outrage, consider if, as was the case with Ozburn-Hessey, the arguments raised to challenge the election were so frivolous that the circuit court summarily rejected them without discussion).  If an employer refuses to honor the results of a union representation election, there should either be an expedited proceeding to resolve the dispute, or workers should be entitled to compensation for interference with their rights.  Republicans often proclaim fealty to “the rule of law,” but the current system where an employer can make workers wait five years to vindicate their right to collective bargaining makes a mockery of the rule of law.

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