Toothless law: 3 years in, still no penalty for flagrant unionbuster

By Don McIntosh

When bosses at Edwards Painting found out there was a union campaign among their employees, 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 wearing a union T-shirt. They threatened to fire others if they attended a union meeting. They interrogated workers about union activities. They told workers 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 company doesn’t hire union painters, and hired nonunion applicants while passing over better-qualified union-member applicants.

Sean Carter, fired by Edwards Painting protests Oct. 13, 2014 outside the office of a developer. Two years after the firing, he settled for $7,000 and waived reinstatement.

Every one of those acts was illegal. But violating the law got the job done: The union campaign 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 Relations Board (NLRB), the independent 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 without an attorney. They gave contradicting testimony and shredded a document they were subpoenaed to hand over. On Sept. 26, 2014, the judge ruled against them, ordering the company 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 extension 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 upheld the judge’s decision, increased the amount of money Edwards owed, and ordered Edwards to comply within two weeks. [See their ruling here.] A month later, on Dec. 28, Edwards filed a “request to re-open/reconsider,” once again on his own without an attorney. He sent it erroneously to NLRB’s regional director, who referred it on to the national Board on Jan. 3.

“The Edwards case is such a good example of the ineffectiveness of the NLRB,” says Seattle labor attorney Daniel Hutzenbiler, who represents the Painters Union. “Nobody’s been reinstated, and any organizing campaign 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 pressure and bad publicity. But it’s still operating, and hasn’t complied with the NLRB order.

Painters union rep Scott Oldham — who got a job at Edwards to help organize the shop — is one of the workers Edwards 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 escape consequences indefinitely. Instead, the union is focusing on “top down” organizing — pitching less hostile employers on the value of signing on with the union in order to access affordable high-quality employee benefits 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 encouraging collective bargaining.

If Edwards Painting has escaped 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 enforce 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 Labor Relations Act, on the other hand, 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 unlawfully fired — and, incredibly, any wages the worker earned in the meantime from another employer count against the back pay award.

Though the sanctions are toothless, employer fear of attorney’s fees might deter lawlessness 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 determined to disregard the law.


What would a ‘get-tough’ labor law look like?

The National Labor Relations Act, passed in 1935, is supposed to encourage collective bargaining and protect workers’ right to join a union. But because of toothless sanctions and adverse court rulings, 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 majority 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 senators opposed it. [The 46 Senate cosponsors it had that year are listed here.]

Workplace Democracy Act

Sponsored by Sen. Bernie Sanders (I-Vermont) as S. 2142 and Rep. Mark Pocan (D-Wisc.) as HR 3690, 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 Polis (D-Colo.), HB 5939 would increase penalties for violating federal labor laws and prohibit companies that receive taxpayer money from using those funds to bust unions.

5 Comments on Toothless law: 3 years in, still no penalty for flagrant unionbuster

  1. First off, anyone involved in organizing knows the laws are staked against workers and have been since the National Labor Relations Act was amended by a bipartisan vote of congress and a bipartisan vote which overrode a Presidential veto. The Employee Free Choice Act and the Workplace Democracy Act do nothing to reinstate the original NLRA and are only doggy treats, smoke and mirrors that allow inside the beltway Union administrators and big D Democrats pretend as though Democrats are actually are pro-worker.

    The facts are that even these half measures have never been undertaken by Democrats when they actually had the political power to change the situation. They are tricks that politicians use to misdirect workers attentions away from the fact that ever since the adoption of the Taft-Hartley Amendments union density has decreased. These half efforts allow Union administrators and their friends in politics to point to things they are doing for the American working class without having to actually accomplish anything. Politicians also realize that before the NLRA was gutted the American working class had real political power and this threatens the established power structure in the United States and turned the working class from beggars to a group that actually influenced public policy. Sadly, the working class has once again been forced to beg and accept the crumbs that the wealthy and powerful are willing to give us.

    The fact that Edwards Painting is receiving massive legal and financial assistance from general contractors, developers, and anti-worker political organizations should not be ignored. The facts that had this been a issue of discrimination and termination against a upper middle class persons from another historically marginalized group rather than blue collar workers it would have lead to demonstrations in the streets and public condemnation from politicians shows the true nature of bourgeois liberals and politicians who claim to be the friends of the working class. The primary reason this is a story is due to that support from these influential groups who derived additional profits through the exploitation of labor and the inaction of those that claim to be the allies of the working class. Everyone is silent to this aspect of the story, everyone but the actual painters who were unlawfully discriminated against and those painters who are forced to compete for work against criminal companies like Edwards.

    As far as the problems with the NLRA, the only answer is to restore the NLRA. We must hold Democrats responsible for their inaction when they have the power to act. We must hold bourgeois liberals accountable for their failure to support the rights of workers. As trade unionist we must understand it is a fight and a struggle and if that is hard, so be it.

    2nd, at the time Scott Oldham undertook the Edwards campaign the policy of DC5 was to not only engage in bottom up campaigns but also what’s known in the construction industry as “top down” or “pre-hire” efforts. Oldham free to undertake this top down strategy but ultimately realized a organizer should use all of the tools with is in ones possession. I truly hope that what Scott Oldham is not saying that the District Council will abandon working directly with employees who aspire to improve their conditions and move to a strategy of begging employers to sign a Union pre-hire agreement as a sole strategy. A sole top-down strategy is a failed strategy, but it is a easy way out of the hard work of actual workplace organizing. Sometimes top down strategies are effective but in areas like painting and drywall where non-union employees earn 1/4 of what union painters and drywall mechanics earn and there is a proliferation of labor brokers who facilitate management’s manpower requirements and where, government employees allow criminal employers to skirt employment taxes, minimum wage, and workers compensation cost, and where management’s capital investment is almost zero, most sales pitches no longer are sufficient alone. These employers win contracts one way and that is by undercutting legitimate construction businesses.

    At some point in the future Union Administrators who advocate using only a top down approach will weaken current union contracts to match “market conditions” in an effort to make their sales efforts more easy. This is exactly why Painters who are members of Local 10 in Portland are the lowest paid and have the least benefits of any union painters on the West Coast. The extreme imposed moderation of pay and benefits as well as a prohibition on the rights of members of Local 10 to strike was done over two decades ago to facilitate a top down strategy, this simply has not worked. Local 10 painters are the least compensated of all union building trades and this has not led to a line of non-union contractors wanting to sign a collective bargaining agreement and never will. What it has led to is a feeling of alienation between the rank and file member and Union leadership.

    Scott was an Organizer, it amazes me how quick he lost faith in true organizing by simply being appointed to a administrative position. My question is what do you do when you realize a sales pitch doesn’t work, fire the Organizer hired to replace you? Is the move away from actual organizing of workers a recognition that administering of a union contract in a situation where a worker centered organizing campaign has taken place can be difficult?

    • Hi JK,
      To be clear, the part above where Scott is cited isn’t a direct quote, just my best effort to summarize what he said. Scott didn’t say DC5 is abandoning bottom-up organizing. Actually he told me they plan to continue doing bottom-up organizing. It’s just that the lessons of this case are that they’ll have to think twice about it in any given situation, because when the law can’t protect workers, an organizer can spend months and years with little to show for it but fired pro-union workers. And that’s a real problem. – Don McIntosh (author of the article)

  2. “Thinking twice about bottom up” is a lesson learned on how slow and inadequate the enforcement side of the act is. The Painters of Local #10 and the Oregon and Southwest Washington painters in general have only one way up. Bottom up organizing. The District Council is continuing bottom up, just to be clear. Scott Oldham

  3. Sounds correct butDM’s failure to adiquitly communicate that in fact the DC is not abandoning fighting for workers rights is what caused my knee jerk reaction. I still find it disappointing that DM did not follow up on where Edwards received their support and just how high that support goes.

    Yes actual organizing is difficult We’ve done it under D’s and R’s. The funny thing is there isn’t much of a difference except when R’s are in power they Agents are expected to not do their job. With all the difficulty we have had working with both the DoL BOLI, L&I, and the NLRB we should remember it was under Democratic leadership. That was as good as it gets.
    JK

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