(The Return of) Ignatz, by Sam Heldman

Friday, October 25, 2002


Think that American labor law is too tilted in favor of the employees? Think that the shrinking percentage of workers who are organized is attributable to employees' brilliant realization that they don't need unions because they have such good employers? Try this case on for size, Wake Electric, which was just announced on the NLRB's weekly summary of new cases yesterday.

First, a little background. When employees want to be represented by a union, then unless they can get their employer to agree to recognize the union (which is very unusual in most industries), they have to get the NLRB to hold an election. Even getting to the point of having an election requires overcoming lots of procedural hurdles and dodging lots of potshots from the company. And if the NLRB does order an election, then both sides (company and union) are required to refrain from doing things to unfairly entice, or to scare the bejeezus out of, the employees. If the side that wins the election is then found to have violated those rules, there will be a re-run election. But if the company did really serious things to destroy the union organizing effort, then a second election isn't necessary; instead, the NLRB is supposed to order the company to bargain with the union without requiring a further election. This has been the law, from the Supreme Court on down, for decades. See NLRB v. Gissel Packing Co. (which is why such orders, to remedy serious unlawful behavior by companies, are called "Gissel bargaining orders".

OK, so let's go to Wake Electric. The employees convinced the NLRB to hold an election, after a majority of employees in the relevant unit signed cards indicating that they wanted union representation. Despite this majority support, the union ended up losing the election by a lopsided vote, when the election was held about six weeks after the majority had signed their authorization cards. What happened in those six weeks to destroy the union's support? Here's what, even according to the two Bush recess-appointees on the Board:
The judge’s unfair labor practice findings that we adopt involve soliciting and promising to remedy grievances, promising benefits if employees ceased their support for the Union, polling employees to determine whether they would ask the Union to withdraw its election petition, telling employees that their union activities would damage their relationships with other electric cooperatives and cause the latter to discontinue helping employees during emergencies, telling employees that it would be futile to select the Union, threatening employees with unspecified reprisals, threatening employees with discharge, creating an impression of surveillance of union activities, and accelerating the resignation dates of four employees and granting them severance pay.
In simpler words, the company repeatedly offered the employees new sorts of wonderful things if they would disavow the union, interrogated employees about their beliefs, threatened employees with various adverse consequences up to and including discharge if they voted the union in, and other things. Here's how Member Liebman described it:
Those unfair labor practices included three separate threats to discharge employees for engaging in union activities, as well as granting significant benefits to employees shortly before the election. … And these were not the only violations of the Act. Far from it: they were accompanied by a drumbeat of other unlawful actions, some of which were committed by high management officials and were directed at nearly all employees. Those included soliciting and promising to remedy grievances, promising benefits if the employees rejected the Union, polling employees to determine whether they would cause the Union to withdraw its representation petition, telling employees that it would be futile to select the Union, threatening employees with unspecified reprisals and with the loss of assistance from other electric cooperatives if they supported the Union, creating the impression that employees’ union activities were under surveillance, and accelerating the resignation dates of four employees to keep them from voting in the election. In uttering one of the discharge threats, supervisor Pernell even assaulted employee Garrett in Garrett’s own home, and punched a hole in the wall of Garrett’s bedroom. Nor did the unlawful conduct end with the election: Pernell threatened employees with discharge even after the election, thus demonstrating a likelihood that the Respondent would continue to violate the Act in the future in order to keep the Union out.
The Administrative Law Judge, who heard all the evidence, found that this was a case that cried out for a Gissel order.

But the two recess-appointee Members of the Board, over the dissent of Member Liebman, decided otherwise. In their view, it will be good enough to hold an election and make the company post a notice promising not to do those things any more. So, three and a half years after they were beaten into submission the first time, the employees will get nothing more than another chance to vote. Meanwhile, with no real adverse consequences, the company has been (as the union-buster consultants love to say) "union-free" for those 3 1/2 years.

This is not, I promise you, an isolated case. This is the sort of thing that we see all the time in our practice. This is what you get when you have a labor law with no teeth, and companies with no respect for the law.

I would have written something about Paul Wellstone instead, but his death makes me too sad; outrage is unfortunately an easier emotion from which to write.

posted by sam 3:53 PM 0 comments


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