One of the labor movement's biggest legislative goals, the Employee Free Choice Act ("EFCA"), died with the conclusion of the last Congress. Although EFCA's death was decried by the labor movement and viewed as a bitter defeat, labor is now on the way to achieving through regulation what it could not achieve through congressional legislation. A union's ability to cripple an employer's efforts to fend off a union-organizing campaign has been snatched from the jaws of defeat.
On December 20, 2010, acting general counsel for the National Labor Relations Board ("NLRB"), Lafe E. Solomon, issued his Memorandum GC 11-01, entitled Effective Remedies in Organizing Campaigns. This memorandum provides direction to NLRB regional offices in pursuing remedies that will allow labor to gain what it had sought through EFCA.
The effect of this memorandum, and a similar one issued on September 30, 2010, Effective Section 10(j) Remedies for Unlawful Discharges in Organizing Campaigns, seeks to expand the NLRB's remedial powers in unfair labor practice cases. The September memorandum provides for immediate injunctive relief in federal district court to reinstate employees discharged during union organizing campaigns (so called "nip-in-the-bud" cases). The December memorandum expands the NLRB's power to seek relief for even minor unfair labor practice cases through federal court injunctions and formal administrative processes before the NLRB.
NLRB's general counsel argues that employees need a level playing field in which to exercise their free choice regarding whether to unionize or not and believes that employees are intimidated by employers because of the power differential that exists between employee and employer. General counsel stated:
In many of these cases, the impact is inherent in the nature of the unfair labor practice. "Hallmark" violations such as discharging employees and threats of job loss and plant closing, for example, "can only serve to reinforce employees' fear that they will lose employment if they persist in union activity." No reasonable employee would engage in any protected activity after witnessing a discharge of a fellow employee for similar conduct; and just as chilled from repeating such activity is the discharged employee, himself, who is now unemployed because he exercised his statutory rights. Furthermore, threats of plant closure or job loss severely and equally affect all employees in the plant. Faced with a threat of loss of work, employees will abandon unionization efforts and effectively relinquish their free choice.
To remedy such violations the NLRB will now assert that the following actions are appropriate:
- Management personnel must read aloud cease-and-desist orders;
- Unions will be allowed access to company bulletin boards to post union-oriented communications;
- Employers must provide unions with current names and home addresses of employees;
- Unions will be allowed access to nonwork areas during nonwork time to address employees; and
- Union organizers will be allowed to address employees (in a "captive audience" setting) on company premises and time.
In a related matter, on December 21, 2010, the National Labor Relations Board ("NLRB") submitted to the Federal Register a proposed rule that would require employers to post a notice of employee rights in the workplace to inform employees of their rights to organize. The notice stated that the NLRB "believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions."
Under the rule, private sector employers would be required to post notices in the workplace in much the same way that notices are now posted detailing wage and hour laws, antidiscrimination laws, or FMLA laws. The NLRB would also require employers who communicate with employees via e-mail to use that method to provide the notice of union organizing rights. The notice would be similar to one the U. S. Department of Labor now requires federal contractors to post. View an example of the DOL notice.
The proposed rule was published in the Federal Register on December 22, 2010. Public comments on all aspects of the proposed rule are sought for the next 60 days, after which the NLRB will review and make any revisions deemed necessary prior to issuance of the final rule.
Employers and business organizations should consider submitting comments that point out the possible negative effects to the business and economy in general.
The message for employers is to get your house in order now regarding how to remain union-free. Employers should ensure that their management staff is trained to recognize union organizing activities and to respond lawfully. Failing to do so may lead to charges of unfair labor practices and penalties.
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