The American workplace is like the Wild West, where employers rampantly break the law to suppress union organizing without facing meaningful repercussions.  The National Labor Relations Board cannot assess fines against lawbreaking employers, and forcing employers to comply with its orders can involve years of petitioning federal courts—often to no avail.  But employers in Arizona may now be shaking in their boots, as it appears that Wyatt Earp has come to town.  Judge David G. Campbell of the U.S. District Court in Arizona just held a company owner in contempt of court [subscription required] for refusing to comply with an order to reinstate workers he fired for organizing, forcing him to surrender to U.S. Marshall custody.

David Bowers, the owner of an electric company in Arizona, was ordered by a circuit court in 2005 to reinstate four fired workers with backpay, after the Labor Board had ruled that the firings were illegal reprisals for the workers’ union activity.  According to an article in the BNA Daily Labor Report, the NLRB tried for years to get Bowers to comply with the order, but he refused.  After the NLRB approached the federal court with the case, Judge Campbell found Bowers in civil contempt of the court.  The NLRB Regional Director who had pursued Bowers told the BNA that federal judges rarely take such action in NLRB cases.  It’s about time someone brought some law and order to the workplace.

I’ve read countless National Labor Relations Board cases involving employers who suppress employees’ rights by using supervisors to do their dirty work.  With their close contact and influence over employees, supervisors can be more effective than upper-level management in muzzling collective action.  Yet in one recent case, supervisor Barbara Lockerman refused to reveal the names of her employees who protested the working conditions at the Texas Dental Association.  She was fired for this act of solidarity.

60 million non-union workers say they would join a union if they could, yet only 16 million workers belong to unions in the United States.  There are many ways to explain this discrepancy—for instance, aggressive unionbusting by employers and changes in the global economy—yet it’s hard to deny the impact of our weak labor law, made much worse by the Bush-appointed members of the National Labor Relations Board. 

Workers have successfully organized through the voluntary recognition process for years, yet the Republican majority of the Board undermined this process in their recent Dana Metaldyne decision. A group of AT&T technicians encountered this roadblock in their efforts to form a union this year.

Yesterday I attended a Senate subcommittee hearing on labor law where National Labor Relations Board Member Wilma Liebman gave a damning assessment of the state of labor law in this country.

Liebman testified that the law is not responsive to changes in the global economy and workplace, and that the Board is not acting vigorously to protect workers from employers “intent on killing an organizing drive.”  As evidence of a loss of confidence in the NLRB election process among workers and their unions, she cited the dramatic decline in representation petitions (a 41 percent drop between 1997 and 2006). 

Labor Board Chairman Peter Schaumber struck a far sunnier tone on the state of the NLRB, citing the fact that in fiscal year 2007, 93 percent of all elections were conducted within 56 days (only eight weeks of anti-union captive audience meetings before you get to vote!). 

His optimism further amazed me when he responded to Senator Tom Harkin’s question as to why the Board had not required employers post a notice in the workplace outlining employees’ rights to organize, the same way employers are required to do for other employment laws.

An injunction can be used by the NLRB to quickly mitigate the chilling effect that firings have on organizing efforts by getting workers back on the job, pending an eventual Board decision.  Yet in this case, the process took over a year:

• February 2007: The workers were fired.
• May 2007: The NLRB issued a complaint.
• July 2007: The NLRB filed for an injunction after an administrative law judge heard the case.
• November 2007: A magistrate judge approved the injunction. The employer objected.
• March 2008: A federal judge overruled the employer’s objections and ruled in the NLRB’s favor. 

It’s still crucial for the NLRB to pursue injunctions to mitigate the effects of firings, and the Employee Free Choice Act would mandate that the agency pursue this remedy during organizing and first contract campaigns.  Yet the Frye case reveals that even the best legal remedies far short, and underscores the need for greater public pressure to hold lawbreaking employers accountable.

Circuit court judges appointed by Presidents Reagan and G.W. Bush ruled recently that a 2005 decision by the Bush NLRB was unreasonable.

The Bush Board found that the CEO of Stanadyne Automotive Corp. acted legally when he prohibited “harassment” in response to what he described as “union supporters harassing…fellow employees” during the organizing campaign.  Yet the U.S. Court of Appeals for the Second Circuit disagreed, and ruled that since the employer had already announced one illegal rule prohibiting workers from discussing unions with their coworkers, “no reasonable employee could fail to infer that the rule against 'harassment’…was intended to discourage protected election activity.”

In a rebuke of the Bush Board, an agency of the United Nations ruled that the NLRB’s decision to broaden the definition of supervisor was in violation of core international labor standards.  The International Labor Organization (ILO) charged that three 2006 supervisor decisions “appear to give rise to an overly wide definition of supervisory staff that would go beyond freedom of association principles… [and] might lead to the exclusion of wide categories of workers from protection of their freedom of association rights.”

Could this could be the end of the Battista era? President Bush just issued a statement designating National Labor Relations Board member Peter Schaumber to be chairman of the Board.

What happened to former Chairman Robert Battista, whose renomination to the NLRB as chairman is pending at the Senate?  Perhaps Bush recognized that Battista’s confirmation was dead in the water, given his controversial and extremist anti-worker record as head of the Labor Board from 2002 to 2007.

Now the Board, comprised of just Republican Schaumber and Democrat Liebman, can continue to issue run-of-the-mill rulings — and we can all sleep a little better.

Joe Hendricks wanted little more than respect from Wal-Mart when he decided to vote for union representation along with his coworkers in the meat department in 2000.  He told me that at Wal-Mart, “We was more of a number, you know?”  Yet after the union vote by the Jacksonville, Texas, employees, Wal-Mart eliminated meat-cutting positions companywide and argued that it had no obligation to recognize their union.  The company also fired Joe and several other union supporters.  The workers at the Jacksonville store remain the only Wal-Mart employees in the U.S. to successfully vote for union representation.

Now, eight years after the union vote, the D.C. Circuit Court just affirmed a National Labor Relations Board decision and ordered Wal-Mart to negotiate with the workers—but merely over the effects of the company’s decision to eliminate their jobs.  There will be no union representation at the store, and the workers won’t get to bargain over wage increases, job security, or better equipment.  Wal-Mart has successfully gamed the system and remains union-free.

Joe’s dream for respect is a basic one, but apparently one that our labor law system could not accommodate.   

After reading hundreds of National Labor Relations Board decisions, my eyes tend to glaze over at reading the same charges against unionbusting employers again and again.  A recent case involving the Hawaii Tribune-Herald is no different.

An administrative law judge found the employer guilty of firing or discriminating against four union supporters, interrogating employees about their union activities, and prohibiting employees from wearing buttons and armbands in support of their fired colleagues, one of whom was a veteran reporter. 

These are run-of-the-mill anti-union tactics we’d expect from Wal-Mart or Verizon…but from a newspaper?  What happened to the Fourth Estate—the press as guardians of our democracy?  Has our society become so accepting of unionbusting that a newspaper believes it’s suitable to break the law and quash its employees’ freedom of association?