A recent advice memo from the Acting General Counsel for the National Labor Relations Board (NLRB) shows once again that the agency is stepping up the nature of the remedies it will go after when employers are accused of unfair labor practices.

In GC Memo 11-06 the General Counsel authorizes NLRB Regional Offices to seek certain extraordinary remedies where the employer is accused of bad faith bargaining with a union over initial collective bargaining agreement terms. The Regions are now authorized to pursue directly:

  • notice reading (requiring a management representative to read a statement in front of employees saying the company will not violate the National Labor Relations Act);
  • a minimum six-month extension of the certification year (unions enjoy a one-year period of time after they become certified to represent a group of employees during which they cannot lose their representation rights, even if a majority of the employees no longer want them. This remedy allows the NLRB to extend that protection for the union for a minimum of an additional six months. Although the GC Memo states that an extension of 12 months is "normally" best, it allows the Region to seek less time, but no less than six months. Interestingly, no maximum time is set for the extension); and
  • a mandatory schedule for bargaining meetings of no less than 24 hours total per month and no less than six hours per session (the theory for this remedy is that employer's sometimes refuse to meet on a sufficiently frequent basis and/or refuse to provide information needed by the union).

In the past, Regional Offices could pursue these remedies only after asking for approval from the NLRB Division of Advice in Washington. The GC memo also mentions, as additional appropriate remedies, requiring the employer to reimburse the expenses the union incurs in the bargaining process allegedly caused by the employer's misconduct and to reimburse the union for its related litigation expenses. However for those remedies, the Regions must still seek approval from the Division of Advice.

This GC memo is just the most recent in a very clear pattern of actions by the NLRB to strengthen its tools of enforcement in ways that make it easier for unions to organize workers and to obtain first contract terms. These were among the main objectives in the ill-fated Employee Free Choice Act proposed in the early days of the current administration and supported fervently by organized labor. When it became clear there was not sufficient support in Congress for that law to pass, the NLRB began its efforts to support the same objectives through administrative measures like this most recent GC memo.