"Seeking Full Remedies"
Stiffer penalties in discharge cases
ULPs during union-organising drive
ULPs relating to bargaining
Are secret ballot elections at risk?
Can an employer insist on an NLRB election to determine whether the union has majority support?
Comment
In September 2021, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued not one, but two memoranda directing regional offices to pursue a vastly expanded array of "remedies" against employers in unfair labour practice cases. From a management perspective, the actions prescribed by these memoranda appear to be more punitive than remedial. This article reviews General Counsel Memorandum 21-06, entitled "Seeking Full Remedies", which was issued on 8 September 2021.
"Seeking Full Remedies"
In this memorandum, Abruzzo announced a "crackdown" on unfair labour practices (ULPs) committed by employers. Specifically, Abruzzo noted that under the National Labor Relations Act (the Act), the NLRB possessed "broad discretionary authority to fashion just remedies to fit the circumstances of each case it confronts", and then went on to state that NLRB regional offices should request "the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices". This means that employers can expect tougher penalties (or "remedies" in NLBR parlance) across a wide range of cases.
Stiffer penalties in discharge cases
Abuzzo is instructing regional offices to avail themselves of "all remedial tools" in cases involving discriminatory discharge in violation of the Act,(1) including compensation for consequential damages, front pay and other compensation, in addition to the traditional remedies of reinstatement to employment and back pay.
ULPs during union-organising drive
According to Abruzzo, cases involving employer ULPs in the context of union organising present particular challenges that require creative remedies. For example, regional offices are instructed to seek the following in all appropriate cases:
- union access, which should include:
- requiring an employer to provide a union with employee contact information;
- equal time to address employees if they are convened by an employer for a captive audience meeting about union representation; and
- reasonable access to an employer's bulletin boards.
- the reimbursement of a union's organisational costs, such as requiring an employer to pay for organisational costs that a union incurs in a re-run election that was necessitated by employer ULPs rendering the first election invalid;
- the publication of the notice to employees and explanation of rights in newspapers and/or other forums, such as the employer's website and social media websites chosen by the regional director and paid for by the employer;
- visitorial and discovery clauses to assist the agency in monitoring compliance with the NLRB's orders;
- employee training, which includes supervisors and managers, both current and new, on employees' rights under the Act and/or compliance with the NLRB's orders and with such training materials to be approved by the NLRB; and
- the instatement of a qualified applicant of the union's choice in cases where a discharged discriminated party is unable to return to work.
These proposed remedies reflect an extreme departure from the NLRB's current practice, and certain provisions, including compelled union access to the employer's property and compulsory reading of notices to employees, may be unconstitutional.
General Counsel Abruzzo outlined an array of novel remedies in cases involving an employer's unlawful failure to bargain with a certified union that include:
- bargaining schedules - "e.g., requiring a respondent to bargain not less than twice per week, at least six hours per session, until an agreement or bona fide impasse is reached";
- the submission of periodic progress reports to the agency on the status of bargaining, to be signed under oath by the employer;
- the reinstatement of unlawfully withdrawn bargaining proposals;
- the reimbursement of collective bargaining expenses incurred by the other party during the entire period in which the offending party failed to bargain in good faith;
- the mandatory engagement of a mediator from the Federal Mediation and Conciliation Service (currently, both parties must consent to the engagement of a mediator); and
- the training of current and/or new supervisors and managers on bargaining obligations.
Again, these proposed remedies mark a drastic escalation from the NLRB's current approach regarding unlawful refusals to bargain, which typically is limited to issuing "cease and desist" orders and other less severe penalties.
Are secret ballot elections at risk?
As alarming as these provisions should be to all employers, non-union businesses should be terrified by Abruzzo's interest in the so-called Joy Silk bargaining orders. Specifically, Abruzzo contends that in cases in which an employer refuses to recognise and bargain with a union that has presented evidence of a card majority and the employer is unable to establish a good faith doubt as to majority status, the employer has violated the Act – and to remedy such a violation, the NBLR should order the employer to recognise and bargain with the union.
Can an employer insist on an NLRB election to determine whether the union has majority support?
Based on Abruzzo's approving reference to Joy Silk Mills, Inc., the NLRB observed that an employer did not necessarily have the right to test a union's claim to majority status through the NLRB's election process. However, Joy Silk was decided in 1949, and it was later repudiated by the NLRB and deemed "dead" by the courts. For the last several decades, it has been universally accepted that an employer is not required to recognise a union on the basis of signed cards – hence the impetus for "card check" legislation during the Obama administration. Unfortunately, it seems that Abruzzo may be steering towards a card check regime by seeking to revive Joy Silk bargaining orders.
Employers face a much more daunting – even harsh – enforcement regime under the newly reconstituted NLRB. It is no coincidence that the major policy initiatives Abruzzo has announced to date are designed to stiffen enforcement against employer ULPs, with hardly any mention of union ULPs. Depending on the extent to which the NLRB actually implements these draconian remedies, there will likely be challenges based upon the First and Fifth Amendments to the US Constitution. However, it would take years of litigation to resolve such challenges, and with no short-term prospects for legislative relief, employers can only set to work and invest the time and resources required to review their labour management policies, practices and procedures to ensure legal compliance and avoid the increasingly sharp bite of the NLRB.
For further information on this topic please contact Robert C Nagle at Fox Rothschild LLP by telephone (+1 215 299 2164) or email ([email protected]). The Fox Rothschild LLP website can be accessed at www.foxrothschild.com.
Endnotes
(1) Further information is available here.