Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

As 2010 draws to a close, the National Labor Relations Board shows no signs of slowing down.  On the heels of yesterday's announcement by the Acting General Counsel that Regional Offices should seek unique and broader remedies in organizing cases, the Board today has submitted to the Federal Register a Notice of Proposed Rulemaking.  The proposed rule would require all covered employers to notify employees of their rights to organize and bargain collectively by posting a notice in their workplace.

The Board's submission states that the Board:

believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.

Failure to post the notice would be considered an unfair labor practice by the Board -- presumably within the language of Section 8(a)(1) of the Act.  This proposed notice is similar to one finalized earlier this year by the U.S. Department of Labor for federal government contractors.  The proposed poster, set forth in the Appendix to the Notice of Proposed Rulemaking, states:

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The proposed notice continues, listing several examples of unlawful behavior under the NLRA.  The Board's submission includes the dissenting view of Member Brian Hayes, which questions the Board's authority to impose such a requirement, and sanctions for non-compliance.  Public comments on the proposed rule may be filed with the Board's Executive Secretary within sixty (60) days of publication in the Federal Register, expected later today.  

Interestingly, the Board acknowledges that this rule was originally proposed in a petition to the NLRB by Charles Morris, Professor Emeritus of Law, Southern Methodist University, in 1993.   Professor Morris is known for a number of novel legal theories in support of expanding collective-bargaining rights under the NLRA.  Most recently, the arguments outlined in his book, "The Blue Eagle at Work" provided the foundation for a United Steelworkers effort before the Board in furtherance of minority union bargaining rights.   

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The Employee Free Choice Act appears completely dead -- not just "mostly dead," as it is unlikely to make the lame duck Congressional agenda as many feared.  Yet, the National Labor Relations Board continues its recent efforts to expand traditional Board remedies administratively without the passage of new legislation. 

Today, Acting General Counsel Lafe Solomon issued a Memorandum extending an initiative he announced on September 30, 2010 to increase the consideration and pursuit of Section 10(j) injunctive relief in so-called “nip-in-bud” cases, including employee terminations during a union organizing campaign.

The new Memorandum indicates that In these cases remedies should be crafted to: “recreate an atmosphere that allows employees to fully utilize their statutory right to exercise their free choice." For example, the memo suggests that regional offices include in complaints, and in 10(j) petitions, demands for unique remedies such as a reading of the Board’s remedial notice, or allowing union access to workplace bulletin boards and providing names and addresses of employees.

Coincidentally or not, the Board continues to phrase its announcements in language consistent with the suggestion that it is administratively pursuing at least some of the end results EFCA failed to accomplish legislatively.  The Acting GC's intro to this Memorandum begins:

The protection of employee free choice regarding unionization is a keystone of the Agency’s mission, and I am committed to making the principle of employee free choice meaningful. Accordingly, as Acting General Counsel I have placed a priority on ensuring that the Agency protects employee freedom of choice with regard to unionization by obtaining effective remedies for employers’ unlawful conduct during union organizing campaigns.

This is not likely to be the final effort along these lines. 

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The Board recently sought briefs in Lamon Gasket Co., a case that will reconsider the 2007 Dana Corp. decision, 351 NLRB 434). Under that more notorious Dana decision, when an employer agrees to voluntarily recognize a union based on signed authorization cards, there is a 45 day window in which the employees may file a petition for an election to decertify the union or to support a rival union.

In a December 6, 2010 decision, the National Labor Relations Board has dismissed the Complaint in another case involving Dana Corp., 356 NLRB No. 49, which alleged that the Employer and the UAW had violated the Act by respectively rendering and accepting unlawful support.

The parties had agreed to a Letter of Agreement (LOA) which set forth ground rules for both parties
that would be applicable in any organizing campaign.  These rules included an employer commitment to "neutrality" during organizing, to provide employee information to the union and to provide access to Employer property upon union request.  The LOA further set forth certain parameters for future bargaining on particular topics, if and when the UAW was successful in its organizing efforts -- including contract duration, healthcare cost sharing, attendance and mandatory overtime. 

Back in 2004, the General Counsel issued a complaint alleging that the LOA provided unlawful assistance to the UAW in violation of Section 8(a)(2) and (1) of the Act and the UAW coerced employees in violation of Section 8(b)(1)(A).  An Administrative Law Judge dismissed the Complaint on both procedural and substantive grounds.  After accepting amicus briefs from over a dozen organizations, the Board issued a 2-1 decision dismissing the Complaint.

In approving the pre-recognition agreement in this case, Chairman Liebman and Member Pearce held: "The Board and courts have long recognized that various types of agreements and understandings between employers and unrecognized unions fall within the framework of permissible cooperation."  But the scope of the broader application of this decision is unclear, as the majority opinion also states:

We leave for another day the adoption of a general standard for regulating prerecognition negotiations between unions and employer. As the Supreme Court has observed, there are issues of labor law where the “’nature of the problem, as revealed by unfolding variant situations,’ requires ‘an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer.’” Eastex, Inc. v. NLRB, 477 U.S. 556, 575 (1978), quoting Electrical Workers v. NLRB, 366 U.S. 667, 674 (1961).

Member Hayes dissented, refusing to distinguish the case from precedent.  According to his dissent, the holding in Dana threatens:

the establishment of collective-bargaining relationships based on self-interested union-employer agreements that preempt employee choice and input as to their representation and desired terms and conditions of employment.

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The Employee Free Choice Act provision which garnered the least attention during the legislative push for the bill during the last several years was the section expanding remedies under the National Labor Relations Act.  After EFCA's future prospects appeared particularly dim, back in February 2010, we speculated in a Bloomberg Law Reports piece that the National Labor Relations Board would seek to expand traditional Board remedies administratively without the passage of new legislation.  That prediction is now increasingly coming to fruition.

In August, a District Court Judge granted a Board-sought preliminary injunction in a refusal to bargain case.  In October, the Acting GC announced a new initiative to increase significantly the Board's pursuit of preliminary injunctive relief in so-called "nip-in-bud" cases.  Later that month, the Board issued a decision awarding compound interest, changing the long-standing practice of ordering simple interest awards.  Finally, another October decision expanded the traditional Notice-posting remedy to include electronic posting under appropriate circumstances.

Now, a late November decision in Deja Vu Mechanicals, 356 NLRB No. 37 (Nov. 24, 2010), casts light on an increasing trend in connection with the settlement of Board cases.  The Employer settled a number of Unfair Labor Practice (ULP) allegations with the Board, which settlement included an obligation to pay five (5) make-whole payments to a particular employee.   The Employer failed to comply with that obligation, and the Board took further action. 

But the case did not go the typical "compliance" route because the Employer had agreed to a settlement agreement which included the following language:

The Charged Party agrees that in case of noncompliance with any of the terms of this Settlement Agreement by the Charged Party and after 14 days notice from the Regional Director of the National Labor Relations Board of such noncompliance without remedy by the Charged Party, the Regional Director may reissue the complaint dated February 25, 2010 in this case. The General Counsel may then file a motion for default judgment with the Board on the allegations of the complaint. The Charged Party understands and agrees that the allegations of the reissued complaint may be deemed to be true by the Board and its answer to such complaint shall be considered withdrawn. The Charged Party also waives the following: (a) filing of answer; (b) hearing; (c) administrative law judge’s decisions; (d) filing of exceptions and briefs; (e) oral argument before the Board; (f) the making of findings of fact and conclusions of law by the Board; and (g) all other proceedings to which a party may be entitled under the Act or the Board’s Rules and Regulations. On receipt of said motion for default judgment, the Board shall issue an order requiring the Charged Party to show cause why said motion of the General Counsel should not be granted. The Board may then, without necessity of trial or any other proceeding, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the Board’s order and U.S. Court of Appeals judgment may be entered thereon ex parte.

(Emphasis supplied).

In Deja Vu, the Board ordered the immediate payment of the additional financial amounts plus daily compounding interest.  We have been aware of discretionary efforts by Regional Offices to obtain tough "performance" or "compliance" language like this in the past -- particularly in cases involving recalcitrant employers.  But to the extent this fits neatly into a developing trend, employers should continue to watch efforts by the Board to expand and strengthen traditional Board remedies in all cases.

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