Striking actors and writers were confident they had a case.
As they attempted to picket NBCUniversal’s studio in Los Angeles earlier this summer, union members had found the public sidewalk suddenly obstructed and impassable, forcing them to walk into the busy street nearby.
The reason? One week after the Writers Guild of America announced its strike in May, the sidewalk was abruptly torn up and fenced off for an NBCUniversal construction project whose timing the union found curious. The WGA said two of its picketers had been struck by a car while walking in the street, and noted that NBCUniversal had failed to establish a pedestrian walkway by the construction area even after being advised to do so by the L.A. Police Department.
So last month, both the WGA and SAG-AFTRA, the actors guild, filed grievances with the National Labor Relations Board. The unions claimed that NBCUniversal had “interfered with, coerced and restrained employees in the exercise of their rights.”
Those grievances will be reviewed.
The penalties, if any are assessed, will be weak.
And none of it will happen quickly.
The language around labor law, particularly in the area of contract negotiation, can be vague to the point of uselessness.
The culprit, experts say, is a set of national labor laws so far out of date, and so toothless, that companies can afford not to worry much about the outcome of many of the claims made against them.
“Labor laws are fairly frequently broken, and the penalty for breaking them is not very great,” said Michelle Kaminski, an associate professor at Michigan State University and an authority on labor law. “And it can take a long time to get a decision about whether the NLRB will agree that the law was violated.”
In part, that’s because the language around labor law, particularly in the area of contract negotiation, can be vague to the point of uselessness. Kaminski said the main provision of the law, originally set forth through the National Labor Relations Act of 1935, is that both sides have to bargain in “good faith.”
“It’s kind of a fuzzy concept,” Kaminski said. “There are relatively few hard and fast rules, other than the two sides have to agree to meet at reasonable times. Other things are kind of a question of art and opinion. It can be difficult to prove that there has been a failure to bargain in good faith.”
That fuzziness swings the advantage to employers who want to stall negotiations, hoping that as time goes on workers will run out of money and need to go back to work, or will blame their own unions for the lack of progress on a new contract.
Last month, the Hollywood industry news site Deadline reported that the studios’ strategy was to essentially starve out the writers — to stretch negotiations deep into the fall so that union members would begin struggling to make rent or mortgage payments. One unidentified source called the strategy “a cruel but necessary evil.”
Negotiators for the studios pushed back on the characterization, but “they wouldn’t be the first employer to take that approach,” Kaminski said. “A lot of times it’s about waiting and delays, and an employer trying to hold off on any agreement. That would be a more common [good faith] violation, but it’s difficult to prove before the NLRB.”
“The federal labor laws are 50 years out of date, and they overwhelmingly favor management over labor.”~ Peter Dreier, professor of politics, Occidental College
There’s also the question of remedy. If an NLRB investigation of a complaint finds that one party isn’t bargaining in good faith, “Every effort is made to facilitate a settlement between the parties,” the agency’s website says. But that investigation alone generally takes months, and even then the board doesn’t have the statutory authority to assess financial penalties — you’d have to go to a federal court for that.
If a company fires an employee who has been leading the attempt to organize a workplace, the NLRB can ultimately order the employee rehired, with back pay. But by the time that all happens, the worker would have been off the job for months — and the back pay often amounts to pocket change for a company that is trying to prevent a union from organizing.
“The federal labor laws are 50 years out of date, and they overwhelmingly favor management over labor,” said Peter Dreier, a professor of politics at Occidental College and the author of several books on public policy and labor. “The penalties for breaking labor laws are so small that businesses willfully break them, knowing that it’s just a cost of doing business. They’d rather pay the fines than have to live with a union.”
The Hollywood job actions are different from some other labor situations in that their unions are long established and very cohesive. The WGA’s vote to authorize a strike was 97.85% in favor, among those who returned a ballot; for SAG-AFTRA, it was 97.91% in favor.
But union solidarity does not necessarily advance negotiations. It doesn’t even guarantee workers a safe place to picket.
In the case of NBCUniversal and its suddenly out-of-service public sidewalk, the company said it has “fulfilled our legal obligations” under the NLRA and told The Hollywood Reporter, “While we understand the timing of our multiyear construction project has created challenges for demonstrators, we continue to work with public agencies to increase access. We support the unions’ rights to demonstrate safely.”
What is left to the unions is the process: File a grievance, wait weeks or months for it to be examined, hope for a finding in their favor, and then further hope the company might be told to fix the sidewalk.
“The penalties have never been great,” Kaminski said. “It’s a reminder that the union’s ability to withhold its labor — that is, to strike — remains the most effective power that it has.”
