From Truth Out: http://truth-out.org/opinion/item/15400-judicial-amendments-and-the-attack-on-worker-rights
By Ellen Dannin and Ann Hodges
Thursday, 04 April 2013
Labor activists regularly bemoan the weak state of the NLRA – the National Labor Relations Act. Many of them think that Congress enacted the NLRA with remedies and rights that, from the beginning, were too weak to protect employees who tried to organize unions and bargain collectively. However, that is not the case.
Take remedies, for example. Today, the standard remedy for an employee who has been fired for union organizing is reinstatement, back pay (minus interim earnings from finding another job) and a notice posted on the employer’s premises that lists NLRA rights along with statements that the employer pledges not to violate the law in the future. The employee whose rights have been violated must also “mitigate damages” by diligently searching for a new job.
In other words, the NLRA board’s standard remedy for illegally firing an employee includes two things that burden the employee whose rights have been violated:
(1) deducting any earnings the employee earned after being illegally fired from the back pay the wrongdoing employer must pay to the employee and
(2) requiring the employee to “mitigate” the damages caused by the employer’s illegal firing by making a satisfactory job search.
However, neither requirement can be found in the NLRA. In fact both violate the spirit and the plain language of the NLRA. The standard for NLRA remedies in section 10(c) requires that remedies promote the NLRA’s policies. Those policies in section 1 and 7 require restoring equality of bargaining power between employers and employees, encouraging collective bargaining, protecting workers’ full freedom of association, self-organization, and choice of representatives and other forms of mutual aid or protection. Mitigation of the employer’s damages and interim earnings requirements do not promote any of those policies.
Continue reading at: http://truth-out.org/opinion/item/15400-judicial-amendments-and-the-attack-on-worker-rights
