The NLRB Is On The Offensive

Monday, January 31, 2011 - 00:00

When President Obama took office in 2009, one of the top priorities of his administration and the Democratic-controlled Congress was passage of the Employee Free Choice Act (EFCA).EFCAwould have dramatically altered the labor relations landscape by removing an employer's right to insist on a secret ballot election for a union to be certified as its employees' collective bargaining agent.It would have also allowed the National Labor Relations Board (NLRB) to make such a certification merely upon a majority of employees in the proposed bargaining unit signing union authorization cards.However, the Senate Republicans were able to prevent EFCA's passage and it has fallen off the political agenda.EFCA's demise and the recent election results have lulled many employers into thinking that all is quiet on the labor relations front.Nothing could be further from the truth.

Since President Obama's NLRB appointees took office, the NLRB has embarked on a renewed effort to change national labor relations policy.Regarding enforcement, the NLRB's chief prosecutor, the Acting General Counsel, has issued new guidelines to the NLRB's regional offices recommending that they act faster and more aggressively when processing charges involving alleged discriminatory termination based on an employee's union activities and/or the commission of "serious" unfair labor practices by employers during an initial union organizing campaign.The guidelines recommend that the regional offices prepare to seek a federal court injunction compelling reinstatement of a fired employee pending disposition of the charge in all cases where the evidence indicates a discriminatory termination.The guidelines also significantly shorten the timeline for handling such a charge by streamlining and expediting the investigation process.For example, under the new guidelines a regional office is supposed to obtain all evidence from the charging party within 14 days, the employer is supposed to respond to the charge within seven days and the Regional Director must determine within 49 days of the filing of the charge whether to seek injunctive relief.In cases involving unfair labor practices committed by an employer during an organizing campaign, the Acting General Counsel's new guidelines provide that in addition to requiring the employer post a remedial notice, the regional offices should pursue other remedies, including requiring that remedial notices be read to employees by a high-ranking company official and the union be given access to the company's bulletin boards and computers for union communications.If the employer's conduct is determined to have a "severe impact" on a union's ability to communicate with employees during an organizing campaign, the guidelines recommend that the regional office seek advice from the General Counsel about giving union representatives the chance to meet with employees during non-work time on the employer's premises and the chance to respond to employer speeches, among other things.

The NLRB has also proposed a new rule that would for the first time in the 75-year history of the National Labor Relations Act (NLRA) require employers to notify employees of their rights under the NLRA through a workplace posting, including posting the notice on the company's intranet or website if the employer customarily communicates with its employees electronically.Although the NLRA does not contain any provision requiring that employers post such a notice (unlike most other federal employment laws), the NLRB says that the proposed rule is necessary because it believes that "many employees protected by the NLRA are unaware of their rights under the statute."Under the proposed rule, failure to post the notice would:(1) constitute an unfair labor practice; (2) toll the statute of limitations for filing an unfair labor practice charge against the employer; and (3) be considered as evidence of an unlawful motive in unfair labor practice cases.

The NLRB has also used recent decisions to change national labor policy.In October 2010, the NLRB ruled in J & R Flooring, Inc. that in addition to being posted in paper form, remedial notices must also be distributed electronically, such as by email, or posted on an intranet or Internet site where electronic means are regularly used for communications.In Jackson Hospital Corp. , also issued in October 2010, the NLRB changed the method of calculating interest on backpay awards from simple interest to daily compound interest, thereby greatly increasing the potential damages faced by employers in unfair labor practice cases.In United Brotherhood of Carpenters & Joiners of America , which was decided in August 2010, the NLRB increased the power of unions to pressure a neutral employer to boycott an employer with whom the union has a dispute by sanctioning the use of stationary bannering at a neutral employer's place of business.

The NLRB's recent actions indicate that it is pressing ahead with efforts to substantially change national labor policy, and all indications are that it will continue to do so.It has requested amicus curiae briefs from management and labor in several pending cases that seek to overturn established law or significantly expand it.Employers should be prepared for more changes in the future.

James R. Grasso is a Partner in Phillips Lytle's Labor & Employment Practice.

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