Recent NLRA Enforcement Efforts by the NLRB General Counsel

Transcription

1 Recent NLRA Enforcement Efforts by the NLRB General Counsel By Robert S. Giolito and Keren Wheeler, Spivak Lipton LLP ABA Section of Labor and Employment Law 3rd Annual CLE Conference, November, 2009 ***** Section 10(a) of the National Labor Relations Act empowers the Board to prevent any person from engaging in any unfair labor practice, but the statute s famous limits on the Board s remedies have severely blunted the Board s ability to police the nation s workplaces. Under Sec. 10(c), the Board may order an offending party to cease and desist, to take such affirmative action including reinstatement of employees with or without back pay, and to make reports from time to time showing the extent to which it has complied with the order. Various efforts over the years to find blood in these veins have been unsuccessful. 1 After almost 75 years, American employers continue to commit even the most elementary and obvious violations of protected worker rights. The Board s traditional remedies -- a cease-and-desist order, the posting of a notice, and award of back pay plus interest -- have proven notoriously unable to dissuade bad conduct. Add to this the fact that the Board s orders are not self-enforcing but require a successful litigant to petition a court of appeals to enforce the Board s order, adding further expense and delay. In recent years, after increasing complaints from labor, the public, and the academic community, the NLRB General Counsel has taken steps to address some of the most prevalent remedial problems, particularly in the area of bargaining, and has suggested that the NLRB staff adopt some new approaches to enforcing the Act. The following summarizes these efforts: 1 The Supreme Court has interpreted the Act as forbidding the Board from imposing punitive penalties, Phelps Dodge v. NLRB, 313 U.S. 177 (1941), or compelling a bargaining party to agree to a proposal or to make a concession, H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970).

2 GENERAL COUNSEL MEMORANDA 1. Remedies in First Contract Bargaining Cases (the First Contract Initiative ) a. GC Memorandum (April 19, 2006) i. Recommending special remedies including: 1. Seeking extension of the certification year 2. Notice reading and publication 3. Union access to bulletin boards a. See Federated Logistics and Operations, 340 N.L.R.B. No. 36 (2003) (denying remedy of Union access to facility in order to address employees and holding that Employer s violations could be remedied without special remedy). b. See ATC/Vancom of California, 338 N.L.R.B. 280 (2003) (granting Union access to bulletin board along with standard cease and desist order and direction of second election). 4. Periodic reports on the status of bargaining 5. Bargaining / litigation expenses ii. Instructing Regions to submit cases to advice for a six-month period ending on Oct. 20, 2006 where: 1. Region finds merit to ULP allegations after a union has been certified and requested bargaining for an initial CBA. 2. Region finds merit to ULP allegations during active union organizational campaign, and ULP has undermined employees right to free choice. b. GC Memorandum 07-08: additional remedies (May 29, 2007) i. Purposes 1. Remedies addressing violations during first contract negotiations should be specifically tailored to restore the pre-ulp status quo, make whole the affected parties, and promote good faith bargaining. ii. Considerations 2

3 1. Recommending that Regions focus on the effect of the ULPs on the bargaining process, the collective bargaining relationship, and the parties relative bargaining strengths, rather than on the egregiousness of the sanctioned conduct. iii. Violations 1. Refusal to bargain at all; 2. Bad faith bargaining; 3. Refusal to meet at reasonable times; 4. Refusal to provide information; 5. The use of bargaining agents who lack bargaining authority; 6. Unilateral changes that unlawfully create additional issues for bargaining; 7. Unlawful discharges of union supporters. iv. Remedies suggested 1. Requiring bargaining on a prescribed or compressed schedule a. Recommending that scheduled bargaining orders be granted in unfair labor practice cases where there has been unlawful delay and bad faith tactics. b. See Myers Investigative & Security Services, 354 NLRB No. 51 (2009) (Board denies General Counsel s request for remedy including bargaining schedule requiring employer to meet with union not less than 24 hours per month until agreement or good faith impasse is reached, where employer failed to meet with union and failed to continue negotiations). 2. Periodic reports on bargaining status a. Recommending that periodic reports be ordered where there is a reasonable concern that the respondent will repeat its unlawful conduct. 3. A minimum six-month extension of the certification year a. Recommending extension where an employer s unfair labor practices delay good-faith bargaining during that period. 3

4 b. Recommending that Regions routinely seek this extension where unlawful bargaining in first contract negotiations disrupted the relationship. c. Recommending that this remedy be sought even where some good-faith bargaining has occurred, even where this will require over 12 months of total bargaining. d. Recommending that Regions continue to seek a 12- month extension of the certification period where there has been no meaningful bargaining or ULPs have eliminated any bargaining progress. e. See Goya Foods of Florida, 347 N.L.R.B. NO. 103 (2006) (Board grants affirmative bargaining order with temporary decertification bar where violations likely to have long lasting impact on Union support, and Union will require time to remedy these effects). f. See Metta Electric, 349 N.L.R.B. No. 101 (2007) (extending Union s certification year by 12 months where Employer refused request for information and refused to bargain). g. See Spurlino Materials, 353 N.L.R.B. No. 125 (2009) (eight month extension of certification year is unwarranted where there is no allegation that employer engaged in a complete refusal to bargain or overall bad faith bargaining). 4. Reimbursement of bargaining costs a. Recommending reimbursement where violations have caused the other party to waste resources in futile bargaining or in efforts to enforce the duty to bargain, and not only where unusually aggravated misconduct has occurred. b. Costs may include negotiating committee s lost wages, union agents salaries, mileage, meals, and lodging. 4

5 c. Noting that Regions will generally seek costs for six month period, but will seek costs for entire negotiations period where the evidence shows badfaith bargaining from the start of negotiations. d. See Regency Service Carts, 345 N.L.R.B. No. 44 (2005) (Motion seeking Union s negotiating costs granted, where Employer had engaged in deliberate surface bargaining). 5. Submission of cases to the Division of Advice a. Requiring Regions to submit all meritorious cases involving violations during bargaining for initial contract to the Division of Advice. c. GC Memorandum 08-08, Report on First Contract Bargaining Cases (May 15, 2008) i. Citing the decline in charges alleging refusal to bargain in initial contract bargaining situations from the period FY 2002 thru FY 2005 to the period FY 2006 thru FY 2007 (from 49.65% to 25%) as evidence of impact of the First Contract Initiative. ii. Citing decline in the merit rate of first contract charges from the period FY 2002 thru FY 2005 to the period FY 2007 (from 44.4% to 37.2%) as evidence of same. iii. Reporting that first contract cases have been submitted to the Division of Advice since the Initiative began, and that special remedies and 10(j) relief have been authorized where appropriate. 2. Use of 10(j) injunctions a. GC Memorandum found that cases involving breaches of first contract settlement agreements are particularly appropriate subjects for the use of 10(j) injunctions and required that Regions include recommendations for 10(j) relief in submissions to the Division of Advice. i. See Ahern v. Jackson Hospital Corp., 551 F.3d 226, 239 (6 th Cir. 2003) (explaining that 10(j) relief is appropriate in first contract 5

6 cases because when employees are bargaining for their first collective bargaining agreement they are highly susceptible to unfair labor practices intended to undermine support for their bargaining representative. ) ii. See Hoffman v. Pennant Foods Co., 184 LRRM 2950 (D. Conn. 2008) (approving 10(j) injunctive relief where Employer unilaterally imposed new rule and applied it in a discriminatory manner). b. GC Memorandum (December 15, 2006) i. Finding that 10(j) relief can be effective enforcement tool: 1. During the Board election process in order to preserve the status quo. 2. Where successor employers refuse to recognize union. 3. Where a union is recognized without majority support. 4. Where a party refuses to provide information critical to bargaining. 5. Where a party refuses to meet for bargaining. ii. Promulgating the following guidelines for the use of 10(j) 1. Consider the strength of the merits, without resolving factual issues. 2. Rely on an inference of adverse impact on Section 7 rights based on the nature and extent of the violations. Examples include: a. Discharges of union activists and supporters. b. Unilateral changes. c. Successor cases. 3. Consider the number of alleged unfair labor practices (this is not necessarily determinative). 4. Consider injunctive relief in blocking charge cases, where it may be particularly appropriate. 6

7 3. Interest on Monetary Remedies a. GC Memorandum (May 2, 2007) i. Recommending that the Board adopt a policy of compounding interest on all monetary awards in order to ensure that employees are properly compensated for the lost use of their money. ii. Specifying that Regions should seek quarterly interest. 7