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of the reissued complaint may be deemed to be true by the Board and its answer to such complaint shall be considered withdrawn.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.
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.