Paper by Robert A. Gorman
The purpose of this paper is to examine the legal protection afforded by the National Labor Relations Act to workers who are terminated upon the relocation or closing of their place of work. To sum up here the conclusion that this author will reach, there is very little such protection indeed.
At the outset, it must be recalled that a very substantial proportion of the American workforce (whether unionize or not) falls outside the coverage of the NLRA. Although there appear to be no reliable figures on, for example, the number of workers engaged in enterprises in “intrastate commerce,” these worker—combined with those who are expressly excluded from the Act's coverage, such as public employees, agricultural workers, and railroad and airline employees—probably comprise more than one-third of America's workforce. Beyond that, certain of the Act's provisions apply only to workers who are represented by a union and covered by a collective bargaining agreement; those provisions would therefore extend to no more than one-quarter of America's workforce. Thus, at least one-third of the persons employed in the United States are unable to invoke section 8(a)(3) of the NLRA, which may come into play when relocations or closings are motivated by hostility to a union or intended as a reprisal for unionization. And section 8(a)(5), which may come into play when a unionized company wishes to relocate or close a facility without first dealing with the union, is no protection for three-quarters of the persons employed in the United States.
Even for employees who can invoke the protection of sections 8(a)(3) and 8(a)(5), those sections were designed to play a rather limited role in connection with relocation and closing decisions. The former section shelters the employee only against anti-union reprisals. If the employer's decision is rooted in a rational economic justification (or even a capricious one, provided it is unrelated to unionization or collective bargaining), section 8(a)(3) imposes no restriction upon managerial action; nor does it afford any substantive benefits to economically injured workers. Similarly, section 8(a)(5)—even when does cover the affected workers—is designed to assure that a unionized employer bargain in good faith about certain matters relating to relocations and closings. “Good faith bargaining” requires only a serious exchange of proposals and information, and an honest effort to resolve differences; it “does not compel either party to agree to a proposal or require the making of a concession,” let alone provide specific economic benefits to terminated employees.
As if that were not depressing enough for such employees, it is further true that even the limited protections of the NLRA have been narrowly and inhospitably applied by the Supreme Court and by the federal courts generally. Although the National Labor Relations Board has in the past occasionally “worked its way around” some of these judicial decisions, both section 8(a)(3) and section 8(a)(5) have been unjustifiably narrowed by a Supreme Court bent upon exalting managerial prerogatives at the expense of legitimate employee interests in job security.
About the Author
Robert A. Gorman. Professor of Law, University of Pennsylvania School of Law. A.B., Harvard College; LL.B. Harvard Law School. Since the delivery of these remarks in November 1983, the National Labor Relations Board—increased to a four-member complement by virtue of appointments by President Reagan—has made a number of dramatic changes in the agency's interpretation of the NLRA. The author has not attempted to explore those changes in detail, but has taken the opportunity to comment in particular upon the Board's narrower approach to the duty to bargain concerning decisions such as consolidations and relocations. See infra text accompanying notes 45-48.
Citation
58 Tul. L. Rev. 1354 (1984)