PaulVA over at group blog MyDD wrote a good post last Thursday, How Employers Get Away With Highway Robbery, which I recommend you taking in if you'd like to get a clear understanding of the corrupt state of labor law in our country today.
There's a tiny piece of his post, though, that I'd like to expand on here. PaulVA said:
"Employers who illegally fire workers for union activity are only required to pay back wages minus what the worker has earned in the meantime."
Actually, the "back wages" part? That's only in theory and not fully true in practice. And the part about interim wages? That's not quite the whole story, either.
In every case of illegal discharge of an employee that I brought to the National Labor Relations Board (NLRB) in my 30 years as a union rep where the NLRB (aka the "Board") indicated to the employer that it would issue a formal complaint against it if it didn't informally settle the case, or where the illegal discharge went to a formal hearing and was settled by the parties prior to the closing of the trial, the employer would offer something less than 100% reimbursement, usually 75-80% (but sometimes less) of the actual full amount of wages stolen from the worker by the illegal discharge. In almost all of those cases the NLRB agent or attorney assigned to the case pressured the union and/or the worker to accept the employer's less than full backpay offer. Typically, the NLRB agent or attorney would insist that the case wasn't as strong as the union or worker believed it to be and, they'd say, there was a good chance of an adverse ruling from the administrative law judge. Better to take the guaranteed 75% (minus taxes and interim earnings*), they'd say, than to chance losing it all. Further, it doesn't matter whether the union, which investigated, prepared and filed the unfair labor practice charge (ULPC) against the employer in the first place, is agreeable to the employer's offer or not. The Board will accept employer offers to settle the case for less than full backpay whether the union likes the offer or not.
In theory I understand and don't generally argue with the reasoning that a guaranteed half-a-loaf is better than an unguaranteed full loaf. Union reps use that same rationale at times in negotiating a settlement of a worker's grievance with an employer. But I don't know of any union that take that approach as a matter of pro forma policy with each and every grievance, which in my experience is damn near what the NLRB staff did with discharges and other ULPCs involving potential backpay. Some NLRB regions were worse at this than others, but it happened all the time in every region I had cases in.
Board agents and attorneys were always mindful of not adding anything more to their caseload and they were also keen to show settlements of cases for their end-of-period reports. The easiest way for them to accommodate such concerns is to settle cases as early and as informally as possible, even if it means settling for less than full restitution of a worker's lost wages. When that approach is the modus operandi, however, it seriously interferes with securing the "make whole" remedy for the worker that the law is supposed to ensure and for showing the illegally fired employee's co-workers, who have been watching the process intently to see what happens, that the law really protects their union and concerted activities.
By the time the NLRB's investigative machinery gets to the point where the employer is told by the Board that they will be taken to trial unless they voluntarily settle the unfair labor practice, the employer and the NLRB agent know full well that the fired worker is by then anxious, and many times financially desperate, to settle. It doesn't take much talking on the Board agent's part, therefore, to convince the worker to accept the employer's 75% offer--an amount the employer always makes contingent upon the worker agreeing to waive his or her right to reinstatement. And what real choice does the worker have? Put yourself in that worker's shoes. You've been fired for union activity and are having a hard time getting a new job, or one that pays equally well as the one you were fired from. Bills (including medical bills because you lost your medical insurance when you were fired) are piling up and the family's being forced to make financial sacrifices. Would you waive your right to return to work (for an employer who grossly violated your rights and paid and treated you so miserably in the first place that you and your co-workers sought out union representation to make improvements) to get a cash settlement of a portion of the wages that were stolen from you? In my experience, virtually every worker caught in this situation agreed to those employer terms.
*As to the deduction of interim earnings, the real situation here, too, is different than what it appears to be. If a fired worker can't establish to the satisfaction of the employer and the Board that he or she has made a dedicated and verifiable effort to secure employment elsewhere from the moment they were fired, they will not be eligible for any backpay, let alone a partial payment of one.
In addition, as PaulVA pointed out in his post, punitive damages, which are effective in detering a guilty party from pursuing such illegal acts in the future, are not assessed against employers found guilty of illegally firing employees because of their union activities.
So, what we have here in the real world is that an employer pays a less-than-full (and tax-deductable) backpay award to an employee it fired (provided the employee has assiduously sought work for the entire period of the discharge) because management identified the worker as a union "pusher," and in the process they get the illegally fired worker to waive his or her right to reinstatement to their former job. That's not a penalty for the employer; it's a fuckin' key victory for it in its anti-union campaign! It's a key victory employers intentionally seek out because it most assuredly will not go unnoticed by other employees that the worker fired for union activity never returns to work with that employer. The message couldn't be louder or clearer: "Mess around with that union, bub, and you're outta here." The employer doesn't have a better weapon in its anti-union arsenal to thwart a drive by its workers to unionize, except, maybe, for the threat of closing the operation down or outsourcing the work if the workers elect union representation--a threat used by company bosses and their union busting consultants in every organizing campaign I worked on in three decades.
All-in-all, the system truly sucks big time and is sorely in need of the minimal reforms proposed under the Employee Free Choice Act.
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