Portside Date: April 11, 2013

Author: Ellen Dannin and Ann Hodges, Truthout Op-Ed

Date of source: April 4, 2013

Truthout

Labor activists regularly bemoan the weak state of the NLRA - the National Labor Relations Act. Many of them think that Congress enacted the NLRA with remedies and rights that, from the beginning, were too weak to protect employees who tried to organize unions and bargain collectively. However, that is not the case.

Take remedies, for example. Today, the standard remedy for an employee who has been fired for union organizing is reinstatement, back pay (minus interim earnings from finding another job) and a notice posted on the employer's premises that lists NLRA rights along with statements that the employer pledges not to violate the law in the future. The employee whose rights have been violated must also "mitigate damages" by diligently searching for a new job.

In other words, the NLRA board's standard remedy for illegally firing an employee includes two things that burden the employee whose rights have been violated:

(1) deducting any earnings the employee earned after being illegally fired from the back pay the wrongdoing employer must pay to the employee and

(2) requiring the employee to "mitigate" the damages caused by the employer's illegal firing by making a satisfactory job search.

However, neither requirement can be found in the NLRA. In fact both violate the spirit and the plain language of the NLRA. The standard for NLRA remedies in section 10(c) requires that remedies promote the NLRA's policies. Those policies in section 1 and 7 require restoring equality of bargaining power between employers and employees, encouraging collective bargaining, protecting workers' full freedom of association, self-organization, and choice of representatives and other forms of mutual aid or protection. Mitigation of the employer's damages and interim earnings requirements do not promote any of those policies.

In fact, there is almost no part of the NLRA that has not been weakened by judicial amendments.

So, how did a law that so clearly was intended to protect worker rights to take collective action, organize unions, and engage in collective bargaining come to offer only weak remedies?

The answer is that the strong protections in the law Congress passed have been weakened by "judicial amendments" - that is, by court decisions that weaken or even eliminate worker rights and protections created by Congress.

In fact, the NLRA is just one of the many workplace laws that have been weakened through judicial rulings. In some cases, Congress has amended the laws to eliminate the judicial amendments. For example, Congress amended Title VII in 1978, 1991, and 2009 and the Americans with Disabilities Act in 2008 to overturn judicial amendments and reinstate the laws Congress originally wrote.

Judicial decisions created nearly insurmountable barriers to the effective enforcement of OSHA, but its judicial amendments have not been overturned. In fact, most employment laws have not been amended because the cost of restoring them to their original purpose is said to be too great. As a result, most of these hobbled laws linger on.

The ADA is an exception. It was successfully amended in 2008 only because of the personal stake and power of Wisconsin Representative F. James Sensenbrenner. Even with the support of this powerful man, it took over a year to overturn the ADA's judicial amendments. In 2007, Representative Sensenbrenner said:

"The Supreme Court has slowly chipped away at the protections of the ADA, leaving millions of citizens vulnerable to discriminatory treatment. The court's interpretation created a vicious circle for Americans with disabilities. It created a broad range of people who benefit from "mitigating measures," such as improvements in medicine, who still experience discrimination from employers, yet have been labeled "not disabled enough" to gain the protections of the ADA. This is unacceptable. Today, we want to place the ADA rightfully back among our nation's great civil rights laws."

Understanding the NLRA requires reading both its language and its judicial amendments. In other words, labor law, as practiced today, cannot be fully understood without seeing it as a recent link in a long judicial legacy that is hostile to worker rights. In 1935, as Congress debated the NLRA, the Senate condemned court decisions that had "intensified" the relative weakness of the wage earner. Attorney Osmond K. Fraenkel railed against judges who had "amended" earlier labor laws.

The National Labor Relations Act has been a particularly attractive target for judicial amendments because it was enacted to promote equality of bargaining power between employers and employees and to create a more equal, more democratic society in which employees have a say in their governance and working conditions.

Taking on judicial amendments that have weakened NLRA rights is no easy thing, but it can be done. Each week, we will discuss the story of a judicial amendment and how it has undermined the rights Congress enacted under the National Labor Relations Act.

[Ann Hodges is professor of law at the University of Richmond where she teaches and writes in the areas of labor and employment law. Prior to joining the faculty, she practiced labor and employment law in Chicago and worked for the National Labor Relations Board as a field examiner.

Ellen Dannin is Fannie Weiss distinguished faculty scholar and professor of law at Penn State Dickinson School of Law and author of "Taking Back the Workers' Law - How to Fight the Assault on Labor Rights."]

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