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.