After the mid-terms elections, we believe that the National Labor Relations Board (“Board”) will be focusing on increased enforcement, increasing the protections of employees and unions, but not engaging in rulemaking to effect major changes in the fundamentals of American labor law. These are the conclusions after attending the American Bar Association’s 4th Annual Section of Labor & Employment Law Conference on November 5, 2010.
One panel at the Conference included all of the current members of the Board. In response to a question from the audience, Member Mark G. Pierce addressed reported comments made earlier in 2010 that he was “intrigued” by the Canadian system, in which union elections are held within 5 to 10 days after the filing of a union’s petition for an election. These comments have caused concern that the Board will impose a rulemaking requirement for swift elections, preventing companies from telling employees about the union and trying to persuade them not to vote for the union. However, in his response, Member Pierce appeared to play down the possibility of changes, stressing that he stated that he was only “intrigued” by how the Canadian system works. Confirming our conclusion, Chairman Wilma B. Liebman stated that the Board had not hired any attorneys to draft proposed rules. She explained that the Board did receive training from a professor at American University regarding rulemaking when, earlier in the Obama Administration, the Board thought that labor law reform legislation may have been likely.
A second panel included the new Acting General Counsel of the Board, Lafe Solomon. He listed his goals as strengthening and enhancing the Board’s remedies, noting that federal law limits the length of time he can continue to serve in an “acting” role. He reviewed his General Counsel Memo 10-07, which streamlines the process of deciding whether to seek injunctive relief against companies who allegedly terminate employees during a union organizing campaign. However, he reported that his Memo has not had a significant impact on American industry. Of the charges filed in which injunctive relief was requested, regional directors dismissed 23 charges and submitted seven cases. Of the four cases in which the Board authorized injunctive relief, only one case proceeded to a hearing, one case settled with the employee’s reinstatement within six weeks of the termination and injunctive relief was not sought in the remaining two cases.
Mr. Solomon also announced that he will seek to impose more rigorous remedies when companies violate the labor laws during a union organizing campaign. For example, one current remedy for unlawful threats and promises is to post for 60 days a notice in which the company promises not to violate specific provisions of labor law. In addition to the posting, Mr. Solomon wants the Board to order a company’s management official or a Board agent to read the notice to all of the assembled employees. In addition, he wants the Board to order that the company will give the union the names and addresses of the employees. He also wants to increase the back pay remedy to terminated employees by requiring a minimum back pay award, even if the employee has not mitigated his damages by trying to find another job. We look forward to reading and commenting on Mr. Solomon’s directives.