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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