Member Article

The Obama National Labor Relations Board (“NLRB”)¹ has started to make its mark on the labor laws through a series of changes that collectively may have a significant impact on the labor law environment.

Recently, it issued a proposed rule requiring employers to post notices informing employees of their rights to unionize; signaled an intention to revisit circumstances where an employer may lose the right to bar non-employee union organizers from its property; and upheld the lawfulness of entering into a collective bargaining agreement where the employer had pledged neutrality while the union sought to secure representational status by a card check.

In addition, the NLRB’s General Counsel has directed regional offices to expand the use of injunctions in organizing cases and require new default language in settlement agreements. He also recommended a change in the rules on deferral to arbitration and announced plans to sue four states whose citizens adopted ballot measures mandating secret ballot elections as the only proper path to union representation.

Enhanced Remedies in Back Pay and “Nip-in-the-Bud” Cases

Consistent with the NLRB’s approach to enhance available remedies² for unfair labor practices, General Counsel Solomon announced, in late December 2010, his intention to pursue enhanced remedies in union organizing situations in order to “nip-in-the-bud” any employer interference with employee free choice.

The General Counsel’s announcement in Memorandum GC 11-01 follows Memorandum GC 10-07, which announced that the Board will strongly consider injunctive relief for discriminatory discharges during organizing campaigns. The GC Memorandum lists threats, solicitation of grievances, promises or grants of benefits, interrogations and surveillance as “serious” violations warranting enhanced relief. If an employer is charged with any of these practices during an organizing campaign, the NLRB’s regional offices will seek injunctive relief in the appropriate United States District Court. Furthermore, depending on the facts, the following remedies may be sought from the district court:

• Requiring management officials to read the Board’s cease-and-desist notice to employees
• Requiring employers to give the union access to employer bulletin boards, and, if appropriate, electronic bulletin boards, e-mail, or intranet postings
• Requiring employers to give the union access to an updated list of employees’ names and addresses, for a longer and earlier time period than would be required under Excelsior Underwear (which does not require such a list until shortly before a union election is scheduled).³

Additionally, if Regional Directors determine that an employer’s practices have a severe enough impact on the union’s ability to communicate with employees, greater relief may be authorized, including: granting the union access to non-work areas during employees’ non-work time; giving the union notice and opportunity to respond to any company addresses regarding union representation; and allowing the union to address employees at an appropriate time prior to a Board election. These extreme remedies may also be deemed appropriate if an employer makes multiple captive audience speeches or if the employer has repeatedly violated the Act.

Board Authorizes Lawsuits Against State Secret Ballot Requirements

In letters dated January 13, 2011, Solomon notified the attorneys general in four states – South Dakota, Arizona, Utah and South Carolina – that the Board had authorized him to seek injunctions in federal court to prevent enforcement of their recently passed constitutional amendments requiring secret ballots in union elections. These amendments are more restrictive than federal law, which allows employees to authorize union representation either by secret ballot or voluntary recognition based on authorization cards signed by a majority of employees. Solomon argues that these amendments are preempted by the U.S. Constitution’s Supremacy Clause because they do not permit, as provided for by current federal law, determination of union representation by authorization cards. Litigation appears likely, as all four attorneys general have publicly indicated their willingness to resist the General Counsel’s actions rather than ignore their voters’ will by bypassing the amendments.

Expanded Use of Default Language in Settlement Agreements

Also in January, Solomon issued Memorandum GC 11-04, which expands the use of default language in settlement agreements. In it, he instructs Regional Directors to include default language in informal settlement agreements and compliance settlement agreements, potentially increasing liability for employers who settle, rather than litigate, NLRA claims.

Under the required default language, an employer’s alleged breach of a settlement agreement allows the Regional Director to issue or reissue the original complaint or compliance specification within 14 days. Furthermore, the default language provides that the original complaint or compliance specification will be deemed admitted, and the employer’s answer deemed withdrawn. After the Regional Director takes action, the employer may challenge only the alleged failure to comply with the settlement agreement. The default language will also allow the Board, without a hearing, to find all allegations relating to the original complaint or compliance specification to be true, make findings of fact and conclusions of law accordingly, and issue an order providing a remedy for the alleged violations.

Whether this default language has shifted the cost-benefit balance in favor of litigating claims rather than settling them remains to be seen.

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