Got Remedies? NLRB Acting General Counsel Does, and Employers Should Beware

National Labor Relations Board (NLRB) Acting General Counsel (AGC) Lafe Solomon is continuing his focus on remedies in unfair labor practice (ULP) cases involving union organizing campaigns. On September 30, 2010, he issued a memorandum on Section 10(j) injunctions for discriminatory discharges during such campaigns. Now he has released another memorandum (pdf), this one targeting remedies regional offices should seek when they issue complaints in ULP cases involving campaign activity.

The most recent memorandum, in the AGC’s words, demonstrates a commitment to "making the principle of employee free choice meaningful." In contrast to his 10(j) memorandum, however, which only focused on employee discharges, the AGC has substantially broadened the scope of his effort to include other violations as well. These violations include:

  • Threats of job loss
  • Threats of plant closing
  • Promises or grants of benefits
  • Solicitation of grievances
  • Interrogation
  • Surveillance
  • Interfering with the ability to communicate between employees

The latest memorandum notes that cases in which unlawful discharges are alleged often include the other violations listed above. "These additional unfair labor practices also have a serious impact on employee free choice, as they inhibit employees from engaging in union activity and dry up channels of communication between employees."

To fully remedy these ULPs, the AGC’s memorandum authorizes regional offices (and those who prosecute ULP cases) to seek the following remedies:

  • Notice reading. Requiring a management official or NLRB agent to read the remedial notice. In typical cases, the remedial notice must be posted on an employer’s bulletin board or, sometimes, distributed electronically.
  • Access to bulletin boards. Regions "should. . .seek" this remedy when the ULP has had an adverse impact on employee/union communications. The remedy would permit the union to place its campaign materials on the employer’s bulletin boards.
  • Access to employee names and addresses. Typically, a union is only entitled to this information after it has filed a petition for an election with the NLRB. The AGC’s memorandum provides for expanded access to this information (both at an earlier stage and for a potentially longer period of time) as a remedy to alleged ULPs.

This development has a number of implications for the labor management professional:

  • It reminds employers of the significant legal liabilities that lurk beneath the surface of any union organizing effort. Navigating those waters requires careful planning and execution.
  • With the Employee Free Choice Act (EFCA) all but dead in Congress, traditional union organizing (i.e., filing petitions and holding secret ballot elections) is likely to increase. Indeed, while not nearly as helpful to unions as EFCA’s card check would have been, an increased emphasis on the remedies contained in the AGC’s memorandum is certainly a helpful tailwind for union organizing.
  • The three remedies noted above may be just the start. In cases involving multiple unlawful employer speeches or where the employer is a "recidivist," showing a "proclivity to violate" the National Labor Relations Act, the AGC tells the regional offices they "should" seek additional guidance on even more severe remedies, like union access to the workplace, "equal time and facilities" for unions to speak to employees about unionization, and union speeches to employees prior to an election.

—Nelson Cary is a partner of the Columbus, Ohio, law firm of Vorys, Sater, Seymour and Pease, LLP, where he specializes in employment law.

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