In keeping with the National Labor Relations Board’s recent efforts to comport with the Obama Administration’s efforts to enhance regulatory enforcement, including penalties, the Board’s Acting General Counsel (GC) has announced a new initiative targeting employers during union election campaigns. In a memorandum (pdf) sent to regional directors and officers, Acting GC Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. It should be noted that the so-called Employee Free Choice Act (EFCA) also called for enhanced penalties for alleged violations of the NLRA during a union organizing campaign. This new Board initiative is consistent with the Board’s efforts to administratively implement substantive portions of EFCA previously discussed in this blog.

Specifically, in such “nip-in-the-bud” cases, local Board regions are directed to seek a notice-reading remedy when an employee discharge is involved, and are encouraged to do so when an employer is believed to have committed any serious Section 8(a)(1) violation. If the ULP is believed to have interfered with communications between employees, or between employees and a union, regions are also directed to seek union access to an employer’s bulletin boards as well as employee names and addresses. This initiative builds upon a program introduced in September designed to streamline and expedite the process of seeking section 10(j) preliminary injunctions from federal courts in cases involving employee discharges during organizing drives.

According to the Acting General Counsel’s memorandum, “[t]he protection of employee free choice regarding unionization is a keystone of the Agency’s mission, and I am committed to making the principle of employee free choice meaningful.” With respect to notice-reading, such remedies “generally require that a responsible management official read the notice to assembled employees or, at the respondent’s option, have a Board Agent read the notice in the presence of a responsible management official.” Among other reasons, the GC encourages a notice-reading remedy because it is “more effective at remedying violations during an organizing drive than a traditional notice posting because of its heightened psychological impact on employees.” This is a significant departure from traditional Board remedies.

As for seeking greater union access, the GC argues that “[a]llowing union access to the employer’s bulletin boards and providing the union with the names and addresses of employees will restore employee/union communication and assist the employees in hearing the union’s message without fear of retaliation.” The GC does not stop at seeking bulletin board and employee name access, however. The new initiative pushes the degree of union access to an employer’s property even further in certain circumstances. As stated in the memorandum:

If a Region determines that an employer’s unfair labor practices have had such a severe impact on employee/union communication that bulletin board access and names and addresses are insufficient to permit a fair election, it should submit the case to the Division of Advice with a recommendation as to why additional remedies are warranted, including: granting a union access to nonwork areas during employees’ nonwork time; giving a union notice of, and equal time and facilities for the union to respond to, any address made by the company regarding the issue of representation; and affording the union the right to deliver a speech to employees at an appropriate time prior to any Board election. These remedies may be warranted where an employer makes multiple unlawful captive audience speeches or where the employer is a recidivist and has shown a proclivity to violate the Act. (emphasis added)

The degree of access proposed by the Acting General Counsel is unprecedented and represents an extreme remedy by the Board that has been advocated by organized labor for years. It is entirely likely that once such a remedy is ordered, employers will have ample opportunity to challenge whether or not the Board is overstepping its boundaries by ordering such remedies. Emboldened by this directive from the GC, unions will no doubt file an increased number of ULP charges during organizing campaigns. Regardless, there is no doubt after this latest directive that the Board is working toward implementing many initiatives proposed in various forums and championed by organized labor to ease perceived barriers to increased union organizing.

For more information on this development, see Littler's ASAP:  NLRB Continues March Toward Administrative Implementation of Processes to Assist Union Organizing.

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