NLRB Activism Update: Acting General Counsel Directs Remedies Initiative, NLRB Proposes Rights Notice

 
Sunday, January 2, 2011
 

By Jackson Lewis

The National Labor Relations Board continues its push to change the national labor policy administratively with two moves – one by the agency’s Acting General Counsel and the other by the Board members themselves.  NLRB Acting General Counsel Lafe Solomon, the Board’s chief prosecutor, has urged regional officials to seek “special remedies” in unfair labor practices (ULPs) complaints for alleged violations committed by employers during union organizing drives.  Meanwhile, the NLRB is proposing a rule requiring employers in a mandatory posting to notify employees of their rights under the National Labor Relations Act (and how employers can violate them).

Remedies Recommendation

As a sequel to his recommendation that the agency’s regional officials prepare promptly to seek federal court injunctions where the evidence obtained during an expedited Board investigation supports a discriminatory termination charge (see our article, NLRB to Weigh Injunctions Routinely for Unlawful Discharges in Organizing Campaigns, Plans Acting GC), the NLRB Acting General Counsel has announced “an initiative to systematically seek appropriate remedies in response to serious unfair labor practices committed by employers during the course of an initial union organizing campaign.”

According to Solomon, in addition to asking for injunctive relief for nip-in-the-bud discharge cases, the agency’s regional officials should consider seeking in Board administrative complaints, where appropriate, stronger “medicine” (in his view) than thou-shalt-not notice postings.   In order to preserve and promote employees’ interest in and communications about the exercise of their statutory rights, he recommends the following: 

  1. Requiring that Board remedial postings be read to employees by a high-ranking company official; 
  2. Requiring that the union be given access to company bulletin boards and computer networks for union communications; and
  3. Requiring that employee names and addresses be provided to the union. 

The Acting General Counsel also recommends that if the agency’s regional officials determine the employer’s ULPs have a “severe impact” on a union’s ability to communicate, they should seek advice from Washington on allowing union representatives access to the employer’s premises to meet with employees in non-work areas during non-work time, and providing the unprecedented remedy of allowing the union equal time to respond to company speeches and deliver speeches of their own, or time to give a pre-election address to workers.

These all are extraordinary remedies that have been used only sparingly, if at all, in the Board’s 75-year history. There has been no comparable initiative before.  Now, these remedies could be sought almost routinely by Board officials against employers.  Solomon appears to ignore any remedies against unions and their representatives for their alleged organizing misconduct that could seriously interfere with employee NLRA rights.  Whether such a correction will materialize remains to be seen.

Rights Notification Proposal 

Not satisfied with making decisions in cases that nudge the law in favor of organized labor and its employee advocates (see our article, NLRB Activism Picks Up Speed), the NLRB has proposed a rule that would make employers notify employees of their rights under the National Labor Relations Act through a uniform workplace posting.  The public will have 60 days to comment on the proposed rule once it is published in the Federal Register (expected on December 22, 2010).

“Believ[ing] that many employees protected by the NLRA are unaware of their rights under the statute,” the Board would require “private-sector employers (including labor organizations) whose workplaces fall under the NLRA . . . to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by email or other electronic means, the notice would be posted electronically as well.”

The proposal contains sanctions for non-compliance For a company's failure to post the notice, the proposed rule would extend the six-month statute of limitations for filing an unfair labor practice charge involving other allegations against the employer.  For an employer's knowing failure to post the notice, the failure could be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Board Member Brian Hayes dissented from the issuance of the proposed rulemaking.  He believed “the Board lacks the statutory authority to promulgate or enforce the type of rule . . . contemplated and which the proposed rule makes explicit.”

The NLRB states, partly by way of justification, that its proposed notice is similar to one by the U.S. Department of Labor for federal contractors.  That notice states employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities.  Examples of unlawful employer and union conduct are provided in the notice.  It also instructs employees how to contact the NLRB with questions or complaints. The DOL notice was one of several controversial labor measures resulting from Executive Orders issued in the first days of the current Administration.

* * *

Note from Jackson Lewis:  With the apparent encouragement of the NLRB and its Office of the General Counsel, labor organizers may have greater incentive to file more unfair labor practices charges against employers.  Among other things, employers should consider additional appropriate communications with employees concerning their rights under the NLRA, ensure their managers are trained to apply company practices and policies consistently, and review said practices and procedures in light of recent changes in the law.  During any organizing drive, close communications with Human Resources and legal counsel prior to taking an adverse employment action against an employee also is advisable.  Employers should consider “inoculating” their employees with respect to the potential posting by advising them in advance of the requirement and adopting a union-free policy statement about why union representation is unnecessary.

Jackson Lewis is considering filing comments to the NLRB’s proposed rule.  If any employer would like to have its views considered for submission, please contact the Jackson Lewis attorney with whom you work or those listed with this article.  We will continue to update you on significant NLRB actions.

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