The National Labor Relations Act (NLRA) is the federal law signed in 1935 that regulates relations between unions, employees and employers in the private sector.  According to the NLRA, “encouraging the practice and procedures of collective bargaining” is the policy of the United States. The Act provides that if workers decide to form a union, the union and employer are required to engage in good faith negotiations to establish terms and conditions of employment. This process is called collective bargaining. The National Labor Relations Board (NLRB) is the federal agency that administers and enforces provisions of the NLRA.

The Failure of Labor Law

In 1984, a Subcommittee of the House of Representatives adopted a report called The Failure of Labor Law—A Betrayal of American Workers, which stated the NLRA “has  ceased to accomplish its purpose…. The evidence is clear that the law does not encourage collective bargaining.  Rather it has become an impediment.”  The law fails to encourage collective bargaining because it doesn’t protect the fundamental right of workers to organize unions: 

• The NLRA does little, if anything, to discourage the intimidation, threats and reprisal faced by workers seeking union representation.  Anti-union consultants, advisors and lawyers have developed aggressive approaches to stopping workers from forming unions through harassing and punitive tactics.  Some union busters advise employers to clearly violate labor law, and some advise companies to adopt approaches which are considered lawful, but clearly violate the law’s intentions.  Either way, the strategies are effective in silencing workers who wish to form unions, and in escaping sanction by the NLRB.
• The NLRA provides for weak remedies that take far too long to implement.  For example, a worker illegally fired for supporting a union is entitled to reinstatement and back pay.  But it can take years before reinstatement is offered and back pay is offset by “interim” earnings, the income an employee waiting for an NLRB decision is required to “diligently” pursue.  When an illegal firing causes a victim of unlawful conduct to lose a house, or a car, or health insurance—the law provides no remedy. 
• The NLRA creates the potential for long delays in finalizing the outcome of union representation elections.  When workers vote to form a union, an employer can readily delay the implementation of that outcome for years by appealing to the NLRB.  Remember the crisis and trauma caused by the five week delay in the outcome of Bush-Gore election? In union representation elections, an employer can usually assure a delay that is 20 times longer.  And while a company can easily afford to drag out the legal process, workers simply cannot. 
• The NLRA ultimately fails to prevent violations of the law.  If the NLRB finds that an employer illegally fired an employee for their support of a union, the employer is given a slap on the wrist.  They may be required to provide the terminated worker with back pay and to post a notice in the workplace alerting workers they won’t commit the same violation again.  Because the NLRA does little to discourage illegal behavior or legal maneuvers which thwart the intention of the law, few incentives exist for employers to stop discriminating against, harassing or firing workers who support a union.

Workers’ Rights Watch:  Eye on the NLRB

Unfortunately, most Americans don’t know about the violations that occur day in and day out as workers seek to organize unions; violations that take a serious toll on workers and organizing campaigns.  They don’t know the NLRB exists, nor do they know how inadequate the NLRA is.  Until now.   

The National Labor Relations Act has ceased to accomplish its purpose and American Rights at Work will demonstrate how through Workers’ Rights Watch:  Eye on the NLRB.  Working directly from the NLRB’s own decisions, our feature will shine a spotlight on how the inadequacies of the law extinguish or delay organizing campaigns and do little to discourage the firing, harassment and discrimination against workers for exercising their legal rights to form a union and collectively bargain.  Each month, we’ll feature a new case taken directly from an NLRB or a U.S. Court of Appeals decision.  These accounts will be based entirely on the legal and factual findings of the agency and courts that enforce federal labor law.  The NLRB reports and decisions themselves will show how the system is failing workers and the scale of the problem.