Phil Cohen War Stories: How to Make The National Labor Relations Act Work For You
Federal law still prohibits bosses from infringing on workers’ rights outlined in the National Labor Relations Act—here’s what’s vital to know.
Editor’s Note:Several years ago, Phil Cohen authored an indispensable training manual in labor law for rank and file workers called “Enforcing Your Rights.” Work-Bites is happy to bring you the continuing serialization of that book with this latest chapter on the National Labor Relations Board.
War Stories By Phil Cohen
The National Labor Relations Board (NLRB) is a federal law enforcement agency - created in 1935 to protect the rights of workers to form unions and engage in collective bargaining. Those rights are spelled out in the National Labor Relations Act.
Bottom line: It violates federal law for employers to interfere with those rights. Management is required to remain neutral regarding the free choice of workers to have a union.
They’re prohibited from threatening or coercing workers for union activity. It’s illegal for them to show favoritism to anti-union employees and discriminate against pro-union employees. How this plays out in the real world is explained below:
Illegal union busting on a plant-wide scale usually takes place under 2 circumstances: Workers are trying to form a union, or management is trying to get rid of an existing union. Here are their six most common dirty tricks (referred to legally as unfair labor practices)
Allowing anti-union workers free run of the plant during working hours to talk trash about the union - or circulate a petition to get rid of the union.
What would happen if you left your job to visit other departments during working hours? You’d get written-up and maybe fired.
Management talking privately with workers, saying they’d be better off without a union
Threatening to close the plant if there’s a union
Promising raises or other improvements if there’s no union
Interfering with your right to show union support in any way that doesn’t hinder production:
This includes handing out union leaflets at the plant gate or in the canteen when you’re on break, wearing union stickers and t-shirts. The NLRB defines this as protected activity.
Threatening, firing, or disciplining workers for engaging in protected activity.
If these illegal practices are taking place where you work, immediately notify your union representative. An experienced union rep, or a union lawyer, will file charges with the NLRB.
Your job then becomes gathering evidence to back up the charges. Under our system of justice, people are innocent until proven guilty. That includes management.
I’ve had some of the biggest corporations in America busted by the NLRB. But I couldn’t have done it without a dedicated group of workers investigating inside the plant and finding witnesses.
There are several things you need to understand about evidence:
You’ve heard the expression “too much of a good thing”. You can eat too much good food. You can have too many lovers at the same time. But you can’t have too much evidence. When it comes to winning a case: the more evidence the better.
“Everybody knows….” isn’t evidence. We need to present witnesses to describe what they actually experienced.
“Somebody told me” isn’t evidence. It’s hearsay. We need witnesses who personally saw or heard something illegal.
There are two types of evidence: Cumulative & Corroborative. It’s best to have both.
Cumulative is many people testifying about the same type of violation.
Corroborative is the most powerful: several people testifying about the same incident.
Your job is to identify witnesses and convince them to meet privately with a union rep or lawyer. If their information is good, the union will present them to an agent of the NLRB to give a sworn affidavit. Someone else telling an agent what the witness told them doesn’t count. It’s hearsay.
Many witnesses will be frightened. That’s the whole point of company tactics. It’s critical to understand and explain their rights:
NLRB affidavits are confidential. Agents are prohibited from revealing the identity of witnesses to management.
The moment a worker sits down with an NLRB agent, they are no longer the union’s witness. They become a witness of the United States government.
The government doesn’t like its witnesses being tampered with. It’s a serious violation of federal law to discipline, fire, or even harass a worker for being a witness.
So, if somehow management figured out an employee was a witness, they’d have to screw up twice as bad for the company to justify their termination to the NLRB.
I’ve presented hundreds of witnesses to the NLRB. Not one of them ever received so much as a dirty look from management.
Remember: a big corporation may have lots of power - but the US government has more power.
Let’s talk about the kind of evidence needed to prove the various types of violations:
Allowing anti-union workers free run of the plant during working hours: We need to prove management knew and didn’t take action to stop and discipline them. That means we need multiple witnesses saying they saw management observing the activity.
You might argue it’s common sense that management knew people were off their jobs. But common sense isn’t evidence.
Management always defends themselves by saying they didn’t know and would have taken action if they did. We have to PROVE beyond a reasonable doubt that they did know.
Management privately coercing workers to not support the union: We need people to testify about discussions management had with them.
The company always targets people they consider weak links. But some of these folks end up feeling shamed and angry.
Direct management solicitation is the capital offence of NLRB violations. It’s the most compelling evidence of illegal union busting.
Threatening to close the plant or promising incentives to get rid of the union: This occurs at both employee meetings and with individuals. We just need people to come forward.
Interfering with your rights to engage in union activity: This always involves union activists so getting witnesses to testify is relatively easy.
Threatening, firing, or disciplining workers for engaging inprotected activity: another very serious offence. But we need enough evidence to overcome management’s claim they fired the person for other, legitimate reasons.
TACTICS FOR A SUCCESSFUL NLRB INVESTIGATION
Conduct your investigation as a covert operation:
Never let management know you’re investigating them. Never confront them about their violations. If you do, they’ll just become more careful. Better for them to grow arrogant and feel above the law. It leads to making mistakes you can document.
Never confront the anti-union workers. They’ll just give a heads-up to management that you’re on to them. They may get the company lawyer to file charges against the union for harassing them. It’s a two-way street.
This isn’t about winning arguments. It’s about winning a war. As I’ve told every union committee I’ve ever worked with, “Loose Lips Sink Ships.”
The company should be blindsided by the charges.
WHAT DOES THE NLRB ACTUALLY DO IF WE HAVE A GOOD CASE?
If federal agents and attorneys find the union has presented enough evidence, they issue a Complaint against the company. It’s the equivalent to an indictment in a criminal case.
It will overturn any election tainted by unfair labor practices. Illegally fired workers will be reinstated with back pay.
It also gives the union an excellent platform to go public with press releases, putting further pressure on the company.
The employer can appeal this in federal court in a process that can potentially go on for a couple of years. But if the union has a strong enough case it usually doesn’t happen. Management makes a business decision to cut its losses and deal with the union.
Often, the management ringleaders of union busting campaign are terminated. In 30 years of doing this, my work has gotten countless members of management fired. Only one case went through the appeals process – and we won!
Phil Cohen spent 30 years in the field as Special Projects Coordinator for Workers United/SEIU, and specialized in defeating professional union busters. He’s the author of Fighting Union Busters in a Carolina Carpet Mill and The Jackson Project: War in the American Workplace.
COMING SOON: Maximum Leverage: From the Street to the Picket Line by Hard Ball Press.