U.S. labor law
Strom, Andrew
Dollars & Sense; Sep/Oct 2003; 249; ProQuest
Pg. 46

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U.S. Labor Law
How the United States’ stacked labor laws make it
nearly impossible for workers to gain union
representation.

BY ANDREW STROM

E
ver wish you had a union at work? Surveys show that half of all non­
union workers do. Still, less than 10% of private sector workers in
this country enjoy the benefits of union representation. How is this
possible? U.S. labor laws that are stacked against workers can take
much of the blame.

Under the National Labor Relations Act (NLRA)—the law that governs
labor relations for most of the private sector—to obtain bargaining rights a
union must represent a majority of the employees in an appropriate “bar­
gaining unit.” So, first you and your co-workers have to figure out who
counts as an “employee.” According to the NLRA, supervisors—anyone
who uses “independent judgment” to “responsibly direct” the work of
others—are not “employees.” This excludes millions of workers who
would qualify as workers under any common sense definition and leaves

LABOR LAW IN ACTION AT OVERNITE

In 1994, the employees of Overnite Transportation Com­
pany, one of the largest nonunion trucking companies in the
country with approximately 14,000 employees at 175 service
centers, began organizing with the Teamsters. By February
1995, workers had voted to unionize at four locations, elec­
tions were scheduled at 22 others, and petitions for elec­
tions had been filed at five additional service centers.

The next month, Overnite’s president, Jim Douglas, sent
a letter to service center managers describing the organiz­
ing drive as “the biggest war of our lives,” and urging them
to “muster troops to all out attack” and to “unleash the fury
of the Overnite machine.” Douglas personally traveled to
more than fifty service centers to threaten workers against
voting for the union. Managers held compulsory meetings
with workers where they threatened alternately that work­
ers would never get a contract, or that if they did get a con­
tract it would drive the company out of business. Supervi­
sors threatened harsher working conditions if workers
unionized. Workers were also illegally prohibited from talk­

ing about the union or distributing union literature in break
rooms. The company used both carrots and sticks in its anti­
union campaign, granting wage increases, but informing
all employees that the wage increases were being withheld
at the service centers that had already voted to unionize.

Not surprisingly, the illegal anti-union campaign suc­
ceeded at many locations. At eleven of the service centers
where majorities of workers had signed union cards, the
workers ultimately voted against unionizing. The Teamsters
filed charges challenging the election results. Due to the
extensive nature of the violations and the large number of
locations involved, the hearings dragged on for months.
Eventually the union won; the Administrative Law Judge
(ALJ) set aside the election results and further found that
Overnite’s illegal conduct was so pervasive that fair elections
would not be possible. As a result, the AU recommended
the strongest possible remedy – an order requiring Overnite
to bargain with the Teamsters despite the outcome of the
elections. The full NLRB agreed with the AU, and so did a

46 DOLLARS AND SENSE

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I

millions more unsure if they have a legal
right to unionize.

Let’s say there are 60 people at your
workplace; five are clearly supervisors,
five more are borderline supervisors, and
35 of the remaining 50 workers want a
union. You should be home free, right?

Not so fast. Your employer is not re­
quired to bargain with your chosen union
just because all or a majority of workers
sign a petition. Instead, your employer
can demand a secret ballot election held
by the National Labor Relations Board
(NLRB, the federal agency that admin­
isters the NLRA). The law gives employ­
ers any number of ploys they can use to
drag out the election process and to craft
a bargaining unit where they’ll win the
vote. Before the election, your employer
can insist on a hearing about whether the
bargaining unit the workers have selected
is “appropriate.” For instance, if workers
at a retail chain store want a union, the
company will argue that the bargaining
unit must include every store in the met­
ropolitan area. The employer may also

demand a hearing about the borderline
supervisors, trying to exclude them from
the union if they are pro-union and in­
sisting on their right to vote if they are
anti-union.

If you clear these hurdles, your em­
ployer will almost certainly wage an
anti-union campaign in the months be­
fore the election. When the NI.RA was
first passed in 1935, the NLRB held that
employers were prohibited from interfer­
ing in union elections, but the 1947 Taft-
Hartley Act allowed employers to express
anti-union views as long as they do not
make threats or promises.

Now, employers may require workers
to attend anti-union meetings without
providing equal time to pro-union work­
ers. (By contrast, under federal election
law, if an employer invites one candidate
to address employees, it must give the
same opportunity to all other candidates.)
Supervisors can meet individually with
workers and ask them to vote against the
union. (Compare this with sexual harass­
ment law, which recognizes that it can be

inherently coercive for a supervisor to ask
a subordinate for a date.) The company
may also post and distribute anti-union
propaganda while simultaneously pro­
hibiting workers from distributing union
literature in work areas. (Imagine a po­
litical election where only the incumbent
is allowed to advertise.) And thanks to
a 1992 Supreme Court decision, nonem­
ployee union organizers have no right to
campaign on the employer’s private prop­
erty, even if the property includes a large
parking lot open to the public.

If you work in the airline industry
you are covered by the Railway Labor
Act (RLA), and a different set of rules
applies. The National Mediation Board,
which regulates elections under the RLA,
has found that it is inherently coercive for
employers to hold small group or one-
on-one meetings to campaign against
the union. But in other ways, the RLA
makes obtaining union representation es­
pecially difficult for those it covers. Under
the RLA, for example, you must organize
as part of a nationwide bargaining unit,

three-judge panel of the Fourth Circuit Court of Appeals,
the most conservative court in the country. But Overnite ap­
pealed the ruling to all eleven judges on the Fourth Circuit.
By the time the full court finally ruled on the case it was
2002. The judges unanimously agreed that Overnite had
committed serious and widespread violations of the law.
Unfortunately, a majority of the judges decided that since
most of the illegal conduct took place in 1995, and there
had been substantial employee turnover since then, a fair
election would nový be possible—so it lifted the bargaining
order. Even if the court had affirmed the NLRB order, Over­
nite would have successfully delayed bargaining for seven
years. But the court essentially penalized the workers for the
delays inherent in the NLRB enforcement process, requiring
them to restart their organizing drive from zero.
‘ At more than two dozen other locations, workers with­
stood the anti-union assault and voted to unionize. At four
of these, Overnite simply refused to bargain. Overnite con­
tested the election results at these sites on grounds that the
NLRB and the Court of Appeals both found without merit.

But the Court of Appeals did not issue its decision until
seven years after the elections, so no bargaining took place
at these sites during all that time. In those locations where
bargaining did take place, negotiations dragged on for years
with little progress.

In 1999 the Teamsters decided to call a strike in order to
put pressure on the company to stop its illegal anti-union
campaign and to bargain in good faith. By this point, the
Teamsters had filed over 1,000 charges against Overnite
with the NLRB. Despite initial support for the strike among
the workers, Overnite was able to outlast them. While the
strike undoubtedly hurt the company’s bottom line, work­
ers became discouraged as it dragged on, and many even­
tually returned to work. After three years, less than 600
workers were still supporting the strike, and the Teamsters
finally called an end to it. At the peak of the organizing
drive, the NLRB certified the Teamsters as the bargaining
representative for 3,600 Overnite workers at 37 service cen­
ters. But today, not a single Overnite worker is covered by a
union contract.

SEPTEMBER/OCTOBER 2003 47

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making it highly impractical for workers
to organize at large, geographically-dis­
persed companies. This is why Federal
Express got Congress to amend the RLA
in 1996 so that it would be covered.

Some anti-union tactics are illegal. But
even where the law does place limits on
employers’ actions during an organizing
drive, it fails to provide meaningful rem­
edies or deterrents. You may think that
if you were fired for trying to organize a
union, a clear violation of the NLRA, you
could sue and win a multi-million dol­
lar verdict. But unlike laws that protect
workers from other forms of discrimina­
tion, there is no private right to sue under
the NLRA. Your only recourse is to file a
charge with the NLRB. The Regional Di­
rector will conduct an investigation, but
won’t give you access to the information
it gets from your employer. Your chances
aren’t good; Regional Directors dismiss
almost two-thirds of all cases without a
hearing. Even if the Regional Director
decides to take your case, the only rem­
edy is an order of reinstatement and back
wages, less any wages you earned in the
interim. There are no fines, no penalties,
and no punitive damages. And reinstate­
ment only comes at the end of a lengthy
legal process—a hearing before an Ad­
ministrative Law Judge, an appeal to the
five-member NLRB in Washington, fol­
lowed by an appeal to the U.S. Court of
Appeals. The process routinely takes five
years. No wonder companies regularly
fire workers for trying to organize.

What if, despite your employer’s anti­
union campaign, you and your co-work­
ers stick together and vote for union
representation? Your employer has one
more chance to contest the result, by
claiming (again) that the bargaining unit
was inappropriate, or that workers were
threatened by union organizers, or any
of a dozen other reasons to invalidate the
election. Whether or not the arguments
succeed, the employer can usually buy
two more years of delay until the U.S.
Court of Appeals orders it to bargain.

Suppose your employer does negotiate
in good faith. Getting a good contract is
still hardly a given. Traditionally, workers
would strike if their employer refused to

Once bargaining finally begins, your
employer’s only obligation is to bargain
in “good faith.” One-third of the time,
workers who vote to unionize never
even get a first contract. Why? If your
employer fails to bargain in good faith,
the only remedy is … an order requiring
it to bargain in good faith. Workers can­
not recover damages for the deprivation
of their right to bargain.

The law gives employers
any number of ploys they
can use to drag out the
election process and to
craft a bargaining unit

where they’ll win the vote.

give in to their demands. But strikes rarely
succeed these days. Your employer can’t
fire you for striking, but it can hire “per­
manent replacements.” When strikers try
to return to work, the employer does not
have to take them back, it merely has to
place them on a preferential hiring list in
case any of the permanent replacements
quit.

Of course, any strike would be more
effective if you could expand it beyond
your own employer. But the Taft-Hartley
Act made it illegal for workers to strike or
picket one employer in order to put pres­
sure on another. This prohibition against
“secondary” strikes applies even to strikes
against another subsidiary owned by the
same company. It also prohibits actions
that go one step up the corporate food
chain; for example, janitors who work for
a cleaning contractor cannot picket the
building owner. And workers at Ford or
GM are prohibited from striking to sup­
port workers at a parts supplier.

Nevertheless, there are still some
workers who have enough power to wage
an effective strike by themselves. But
once again Taft-Hartley is there to keep
the workers in check. The law allows the
President to enjoin any strike that poses
a threat to “health and safety”—a provi­
sion courts have interpreted broadly to
include threats to the nation’s economic
well-being.

Unions grew rapidly after the NLRA
was passed in 1935, but the percentage of
unionized workers has declined steadily
since the passage of Taft-Hartley in 1947,
when over 40% of private sector work­
ers belonged to unions. A comprehensive
labor law reform bill was introduced dur­
ing the Carter administration that would
have given unions equal time when
employers hold anti-union meetings,
strengthened the remedies for violations
of the law, and speeded up the enforce­
ment process. The bill was filibustered to
death by Republicans. During the Clin­
ton administration, there was a proposal
to limit the ability of employers to hire
permanent replacements for strikers, but
again it didn’t get the backing of the 60
Senators necessary to prevent a filibuster.
Since that defeat, unions have virtually
given up on achieving labor law reform.

In a few instances workers have,
with union backing, waged successful
campaigns that get around one-sided
labor laws by using shareholder activ­
ism, marches and rallies, reaching out
to elected officials, handbilling, and the
Internet. But with labor law so stacked
against workers, it’s a miracle that any
workers manage to gain union represen­
tation at all. ■
Andrete Strom has been a union lawyer for ten
years. He is currently on the staff of Service Em­
ployees International Union, Local 32BJ, which
represents over 70,000 building service workers
in New York, New Jersey, and Connecticut.

The graphic, from the cover of a 1940s union
pamphlet opposing passage of the Taft-Hartley
Act, appears courtesy of the Holt Labor Library
in San Francisco, California. Visit the Library’s
website at <www.holtlaborlibrary.org>.

48 DOLLARS AND SENSE

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