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:
- Requiring that Board remedial postings be read to employees by a high-ranking company official;
- Requiring that the union be given access to company bulletin boards and computer networks for union communications; and
- 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.