In 1939, Osmund K. Fraenkel, former general counsel of the American Civil Liberties Union, said, "Courts have often struck down laws designed to aid labor, by conservative construction of the constitution and have emasculated them by interpretation. The most useful weapon in their varied armory has been the doctrine that the legislature intended merely to enact the law as it had already been handed down by the courts. As if the labor pains of law-making were readily undergone for any such futile purpose."
It is certainly true that judges have overwritten the remedies Congress included in the NLRA. To understand what this means consider how the NLRA enacted by Congress would operate compared with the remedies under the judicial amendments.
NLRA Remedies Enacted by Congress
Section 10(c) says that remedies for unfair labor practices must promote the NLRA's policies. In other words, under the NLRA as written by Congress, devising a remedy for an employee who has been fired for trying to organize a union would require the NLRB to identify harms caused by that illegal firing and then to identify remedies for those harms that would promote the NLRA's policies.
Common harms from firing a pro-union employee would include lost wages and benefits. In addition, loss of income might lead to the loss of a home, repossession of a car, loss of medical coverage or harm to the employee's credit rating. Although commonly part of the remedy for other legal claims, these consequential losses are never included in a so-called "make whole" remedy under the NLRA.
In addition, harms caused by firing a pro-union employee are not limited to that employee. An illegal firing to nip a union organizing drive in the bud might make the fired employee's co-workers too afraid to exercise their lawful rights to organize a union. A remedy that promoted the NLRA's policies would include removing the fear workers felt because of their co-worker's firing. Other remedies would depend on the facts of each case, guided by section 10(c)'s requirement that remedies must promote the NLRA's policies.
But, rather than identifying remedies that will be effective in promoting the NLRA's policies, the normal remedy for firing a pro-union employee is simply back pay, an offer of reinstatement and a notice posting to inform co-workers of their NLRA rights. These standard remedies provide nothing more for co-workers than posting a notice of NLRA rights for 60 days, and the back pay paid to a fired employee is likely not to make the employee whole.
In Unbelievable Inc. v. NLRB (1997), Judge Patricia Wald said:
Congress deliberately drafted section 10(c) to include all reasonable remedies consistent with the Act's purposes. The final version of section 10(c), authorizing "such affirmative actions . . . as will effectuate the policies of [the NLRA]" replaced earlier provisions that had enumerated specific types of remedies available to the Board. The broader language was intended to "delegate to the Board the primary responsibility for making remedial decisions that best effectuate the policies of the [NLRA]." The Board's choice of remedy "should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." And, the court is "obliged to defer heavily to the Board's remedial decisions."
Judge Wald was certainly correct. However, rather than judges deferring to the NLRB's expertise and allowing the NLRB to order remedies that would promote the NLRA's purposes, the NLRB has been forced to defer to judicial decisions that undermine the Act.
Restoring NLRA Remedies and Promoting the Act's Policies
Three sections of the NLRA set out policies to be used in determining whether a remedy is appropriate under section 10(c).
Section 1, the NLRA's policy statement, declares it to be the policy of the United States to encourage the practice and procedure of collective bargaining and to protect workers' "full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection."
Section 7 identifies employee rights to organize and to form, join, or assist unions, to choose bargaining representatives, to bargain collectively, and "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection … and to refrain from any or all such activities."
Section 10(c) says "the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act."
NLRB decisions and orders may mention effectuating the act's policies, but generally there is no effort to ensure that effective remedies are ordered. For example, when an employee is fired for trying to organize a union, that employee and that employee's coworkers are likely to have suffered harm to their NLRA rights because the co-workers now fear that they will be harmed for seeking union representation. But only the employee who was fired is given a remedy. Remedies that would address the co-workers' fears are never ordered.
An important principle of the American legal system is that there is no right without a remedy. Or, put another way, if there is no remedy for the violation of a right, then there is actually no right.
That is precisely the situation created by judicial amendment of remedies under the National Labor Relations Act. Thanks to decades of judicial amendments, section 10(c)'s command that NLRA remedies must effectuate the NLRA's policies, has become a nullity.
Back pay is the sole monetary remedy, even if an employee has suffered additional financial harm as a direct result of an employer's illegal action. That individual back pay award fails to address harms suffered by coworkers of an employee terminated for union activity or protected acts of solidarity, because the judicial amendments forbid providing a remedy for those co-workers. And even though Congress intended the rights and protections in the NLRA to be collective rights, judicial amendments require constrained remedies that prevent employees from asserting their NLRA rights as collective rights for collective injuries.
In fact, there are so many judicial amendments that have gutted the effectiveness of NLRA remedies that it takes more than one post to lay them out.
The remedy for this problem can be found in the language of the NLRA. It requires remedies that ensure a fired worker, his/her co-workers and other employees feel free to choose representatives for collective bargaining and to assert their other NLRA rights. To achieve that goal, we must restore the NLRA as it was written by repealing the judicial amendments.
This is the 14th article in the Judicial Amendment Project series on the history of the National Labor Relations Act. The stories in the series to date include:
Turning the NLRA into Groundhog Day, the Movie