In a landmark decision, the National Labor Relation Board has imposed an array of extraordinary remedies against an employer for what the NLRB described as “egregious and pervasive violations” of the National Labor Relations Act. Pacific Beach Hotel, 361 NLRB No. 65 (2014).
As the basis for its imposition of the remedies, the NLRB stated:
Despite having been found in violation of multiple provisions of the Act, having been found to have engaged in objectionable conduct that interfered with elections on two occasions, having been subject to two Section 10(j) injunctions, and having been found in contempt of court for violating a Federal district court’s injunction, the case before us demonstrates that the Respondents still have not complied with the remedial obligations imposed on them during our earlier encounters. Rather, they have continued to engage in unlawful activity, some of which repeatedly targeted the same employees for their protected activity and detrimentally affected collective bargaining.
Slip op. at 2 (emphasis in original).
While the remedies in question were based on those imposed in previous NLRB and judicial proceedings, the decision marks the first time that so many of the remedies have been imposed against one party in a single order. The enhanced remedies imposed by the NLRB in its decision include:
- Payment of the NLRB General Counsel’s and the Union’s attorneys’ fees and costs. This raises the issue of the Board’s authority to require this either under its its claimed inherent power to “control and maintain the integrity of its own proceedings,” and perhaps sets up a test in the federal courts.
- Payment of the Union’s bargaining expenses (and other related expenses) to the extent they exceed “normal expenses” as a result of the Employer’s violations.
- Posting and mailing of the traditional Board notice, the NLRB decision and an Explanation of Rights of employees under the NLRA. The Explanation of Rights is a unique remedy devised for the first time in this case. Its stated purpose is to set out “the Employees core rights under the Act, coupled with clear general examples that are specifically relevant to the unfair labor practices found in this case.” While the federal courts have found that the Board did not have the power to require the posting of similar notices under its rulemaking authority, the Board claims the power to require Explanation of Rights in this case under its remedial authority, tailored to the specific violations in this case.
- Requiring the posting period to be three years. The normal posting period is sixty days, but the Board felt the three year period was necessary to overcome the “legacy of coercion” and to “change . . . the workplace culture.”
- Requiring mailing to all employees, including supervisors and managers. One of the points of dissent was the authority of the Board to require notices to be mailed or distributed to supervisors and managers, who are not statutory “employees” under the NLRA.
- Requiring the notice and the Explanation of Rights to be given to all newly hired employees, and supervisors and managers, for a period of three years.
- Requiring the notice and Explanation of Rights to be published in two publications of” broad circulation and local appeal” twice a week for a period of eight weeks.
- Requiring the reading of the notice and Explanation of Rights to all of the employees, and requiring the attendance of managers and supervisors, including senior executives, at each of the three meetings where the reading takes place.
- Rescission of unlawful unilateral changes made by the Employer to the terms and conditions of employment, including any rule at variance with any contractual provision or past practice of allowing Union representatives access to the Employer’s property.
- Inclusion of a “visitation clause” in the notice, allowing a “duly appointed Board agent” to enter the Employer’s facility for a period of three years for the purpose monitoring whether the Employer is in compliance with the “posting, distribution mailing requirements.”
The NLRB considered and endorsed, but did not award, front pay for a specific individual who it found had been the focus of discrimination and discharge by the Employer. Such an award would have been a first for the Board, which heretofore has only awarded make whole remedies such as back pay and reinstatement.
The two separate dissents took issue with some portions of the above remedies, but in general agreed that this was a case in which at least some of the remedies were appropriate.
The remedies in this case are undoubtedly strong. It remains to be seen whether, if challenged, they will survive in this form. But for now, this decision marks a dramatic but not completely surprising effort from the Board to put more “teeth” in its remedies, particularly where dealing with what it considers a recidivist employer. Query whether these remedies, or versions of them, will be extended to cover other, less egregious cases.