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About Northwest labor press. (Portland , Ore.) 1987-current | View Entire Issue (Jan. 6, 2017)
PAGE 4 | January 6, 2017 | NORTHWEST LABOR PRESS Toothless law: 3 years in, still no penalty for flagrant unionbuster By Don McIntosh When bosses at Edwards Paint- ing found out there was a union campaign among their employ- ees, they squashed it, and broke federal labor law 18 different ways. Edwards, based in Oregon City, employs about 20 workers to paint multifamily residential buildings for general contractors like R&H Construction. The company wanted nothing to do with the Painters and Allied Trades union. So they fired four union supporters, one for wear- ing a union T-shirt. They threat- ened to fire others if they at- tended a union meeting. They interrogated workers about union activities. They told work- ers the company would never be a union shop. They called the police when some employees handed out union fliers at their home office. To avoid hiring union supporters, they put a question about union affiliation on their employee application form, told applicants the com- pany doesn’t hire union painters, and hired nonunion applicants while passing over better-quali- fied union-member applicants. Every one of those acts was il- legal. But violating the law got the job done: The union cam- paign was obliterated. All this was in the summer and fall of 2013. Over three years later, the company has faced next to no consequences. Sure, the union filed charges with the National Labor Rela- tions Board (NLRB), the inde- pendent federal agency that is supposed to defend workers’ right to form a union. But owner Gene Edwards told the NLRB’s investigating agent flat-out that he would rather have closed his 45-year-old business than allow his workers to unionize. When the case went before an administrative law judge in May 2014, Edwards, his wife Connie, and their son Grant, went with- out an attorney. They gave con- tradicting testimony and shred- ded a document they were subpoenaed to hand over. On Sept. 26, 2014, the judge ruled against them, ordering the com- pany to hire or reinstate seven union painters and pay back wages with interest — within two weeks. Three weeks later, Edwards hired an attorney, Paul Ostroff of the Lane Powell law firm. The company then requested exten- sion after extension, took up time in fruitless settlement talks, and a year after the judge’s order, appealed that decision to the NLRB’s five member Board in Washington, D.C., objecting to 97 separate elements. On Nov. 30, 2016, the Board What would a ‘get-tough’ labor law look like? The National Labor Relations Act, passed in 1935, is sup- posed to encourage collective bargaining and protect work- ers’ right to join a union. But because of toothless sanc- tions and adverse court rul- ings, the law isn’t strong enough to accomplish those purposes. What would fix it? Here are some proposals, none of which are expected to pass a GOP-led Congress. Employee Free Choice Act A decade ago, labor put its hopes into this bill, which would require employers to recognize a union if a major- ity of workers sign union cards; allow fines of up to $20,000 per violation, plus triple back pay, when workers are fired for supporting a union; and provide binding arbitration of first-time union contracts if the two sides can’t work it out on their own. It passed the House 241-185 in 2007, but died in the Senate in 2007 and 2009 because all Republicans and at least five Democratic sen- ators opposed it. Sean Carter, fired by Edwards Paint- ing, protests Oct. 13, 2014 outside the office of a developer. Two years after the firing, he settled for $7,000 and waived reinstatement. upheld the judge’s decision, in- creased the amount of money Edwards owed, and ordered Ed- wards to comply within two weeks. One month later, nothing has happened. [The NLRB gave Edwards until Jan. 5 to respond — after this issue went to press.] “The Edwards case is such a good example of the ineffective- ness of the NLRB,” says Seattle labor attorney Daniel Hutzen- biler, who represents the Painters Union. “Nobody’s been rein- stated, and any organizing cam- paign we had is dead.” Edwards had to shell out for the legal help, and paid $7,000 to settle with one of the fired painters. It may also have lost some business due to union pres- sure and bad publicity. But it’s still operating, and hasn’t com- plied with the NLRB order. Painters union rep Scott Old- ham — who got a job at Ed- wards to help organize the shop — is one of the workers Ed- wards fired. He says Painters District Council 5 has learned a lesson from the Edwards case: Think twice about organizing “bottom up” by appealing to workers, because employers can just fire union supporters and es- cape consequences indefinitely. Instead, the union is focusing on “top down” organizing — pitch- ing less hostile employers on the value of signing on with the union in order to access afford- able high-quality employee ben- efits and a ready supply of skilled workers through the union hiring hall. Ironically, the Edwards saga comes at a time when the NLRB is the most energetic it’s been in decades. Under the leadership of Obama appointees, the agency has worked hard to modernize operations, make its processes more efficient, and fulfill the law’s official mandate of encour- THOMAS, COON, NEWTON & FROST Workplace Democracy Act Sponsored by Sen. Bernie Sanders (I-Vermont) and Rep. Mark Pocan (D-Wisc.), it would require an employer to recognize a union if a majority of workers sign union cards. Giving Workers a Fair Shot Act Sponsored by Rep. Jared Po- lis (D-Colo.), it would in- crease penalties for violating federal labor laws and pro- hibit companies that receive taxpayer money from using those funds to bust unions. — Don McIntosh aging collective bargaining. If Edwards Painting has es- caped justice so far, the blame is not with the NLRB agents and attorneys, who worked hard to assemble a case and enforce the law. It’s because the law they en- force was weak to begin with. Other employee-protection statutes give wronged workers the right to sue, and if they win, to collect actual and punitive damages plus attorney fees. The Civil Rights Act of 1964 is an example. Those sanctions are a serious deterrent to employer wrongdoing. The National La- bor Relations Act, on the other hands, provides no penalties, only “remedies” — meaning the wronged employee must be “made whole.” The employer must pay the worker any wages they lost because they were un- lawfully fired — and, incredi- bly, any wages the worker earned in the meantime from an- other employer count against the back pay award. Though the sanctions are toothless, employer fear of attor- ney’s fees might deter lawless- ness in some cases. And unions do try to use the law as a shield to protect workers’ rights. But the Edwards case shows what a flimsy shield it is, given how tough it is to force compliance on an employer who is deter- mined to disregard the law. THOMAS, COON, NEWTON & FROST
