Remember the 1993 movie Groundhog Day? Bill Murray plays Phil, an obnoxious and arrogant reporter who replays the same day over and over. Eventually repeating the same day over and over changes his life for the better. He becomes worthy of winning the woman of his dreams. February 2 stops repeating and, as February 3 arrives, he can live a normal, happy life.
Unfortunately for unions, remedies for employer bad faith bargaining under the NLRA are a lot like Groundhog Day, but with no possibility for unions and workers to have a happy ending. The problem is not in the law as written but is a result of judicial amendments.
Congress identified collective bargaining as the goal of the National Labor Relations Act. What stood in the way of successful bargaining was individual employees' lack of bargaining power compared to employers who were corporations or partnerships and had the power to depress wages and working conditions. To break the cycle of recessions, employees needed the enforceable right and power to bargain collectively.
Congress included in section 8(d) of the NLRA an obligation for employers and unions to bargain "in good faith about wages, hours, and other terms and conditions of employment".
Once a majority of employees choose union representation, both parties, the union and the employer, are required to bargain with a sincere desire to reach a collective bargaining agreement. That sincere desire can be shown by making a real effort to agree. While unions sometimes use illegal bargaining tactics, rarely do they lack a sincere desire and effort to reach an agreement. A union and the employees it represents need an agreement to protect the rights they have negotiated. Indeed, an agreement and good terms are the purpose of unionizing.
An employer, on the other hand, may see little benefit in reaching an agreement that legally binds the employer to specific wages, benefits and working conditions. Because employers may have powerful incentives not to reach an agreement, there must be effective remedies to prevent an employer from refusing to bargain in good faith and reach an agreement.
The Supreme Court's 1970 case of H.K. Porter & Co. v. NLRB held that the NLRB could not require an employer to agree to a contract term as a remedy for its bad faith bargaining. In this case, the term the employer refused to agree to was a requirement that the employer deduct union dues from employees' paychecks.
The Supreme Court majority relied on the NLRA's definition of collective bargaining to limit the NLRB's authority to remedy violations of the law. Section 8(d) says the NLRA does not require an employer or union to agree to a proposal.
In H.K. Porter, however, the issue was not requiring an employer to agree to a proposal. Instead, the issue was what was an appropriate remedy for this employer's bad faith bargaining concerning the union's dues checkoff proposal. The law gives the NLRB very broad authority to remedy violations of the NLRA. Congress said the NLRB can take "affirmative action" to remedy a violation. Section 10(c) says that the measure of an NLRA remedy is whether the remedy will "effectuate the purposes of the Act." Confusing limits on bargaining requirements with limits on remedies, the court ignored the obvious conclusion that an effective remedy would effectuate the act's primary purpose of encouraging collective bargaining.
As a result, the court majority struck down the remedy the NLRB had devised to prevent the employer's bad faith frustration of the bargaining requirement of the law. The dissenters, Justices Douglas and Stewart, had no trouble understanding that the issue involved imposing an appropriate remedy for bad faith bargaining:
The court correctly describes the general design and main thrust of the Act. It does not encompass compulsory arbitration; the Board does not sit to impose what it deems to be the best conditions for the collective bargaining agreement; the obligation to bargain collectively "does not compel either party to agree to a proposal or require the making of a concession." Section 8(d) of the Act.
Yet the Board has the power, where one party does not bargain in good faith, "to take such affirmative action . . . as will effectuate the policies" of the Act. Section 10(c) of the Act.
Here, the employer did not refuse the check-off for any business reason, whether cost, inconvenience, or what not. Nor did the employer refuse the check-off as a factor in its bargaining strategy, hoping that delay and denial might bring it in exchange favorable terms and conditions. Its reason was a resolve to avoid reaching any agreement with the union.
In those narrow and specialized circumstances, I see no answer to the power of the Board, in its discretion, to impose the check-off as "affirmative action" necessary to remedy the flagrant refusal of the employer to bargain in good faith.
The case is rare, if not unique, and will seldom arise. I realize that any principle, once announced, may, in time, gain a momentum not warranted by the exigencies of its creation. But, once there is any business consideration that leads to a denial of a demand or any consideration of bargaining strategy that explains the refusal, the Board has no power to act. Its power is narrowly restricted to the clear case where the refusal is aimed solely at avoidance of any agreement. Such is the present case. Hence, with all respect for the strength of the opposed view, I dissent.
If the only remedy is nothing more than going back and bargaining the same issue again and again, what incentive does an employer have to learn the value of bargaining in good faith? In fact, it has no incentive to obey the law and every incentive not to engage in real bargaining with the union.
The Supreme Court gave employers the right and incentive to repeatedly go through the motions of bargaining with no intent of ever reaching an agreement with the union. And the NLRB's only remedy for an employer's bad faith bargaining is to say "go back and do it better"; it can never force an end to the process.
In Groundhog Day, February 3 finally came after Phil learned his lesson. For too many employees, that day never comes. And many workers never get a union contract after voting for union representation because there is no incentive for the employer to agree. Those frustrated workers are likely to give up their rights to collective bargaining and, whipped into powerlessness, give in to accepting whatever their employer provides.
How many times does it take to learn that we need to enforce the law that Congress wrote to accomplish the goals that Congress intended? Like Phil, and the employers who want to avoid their legal obligations, the court seems all too pleased to repeat the same mistake over and over as well. It's time to get out of the hole the Supreme Court dug for workers.
This is the 13th article in the Judicial Amendment Project series on the history of the National Labor Relations Act. The stories in the series to date include: