NLRB Memo Encourages Extraordinary Remedies In Ordinary Cases

February 10, 2011

On Dec. 20, 2010, National Labor Relations Board Acting General Counsel Lafe E. Solomon issued a memorandum (GC-11-01) authorizing NLRB Regional Directors to seek extraordinary relief when litigating certain alleged employer violations of the National Labor Relations Act (NLRA) that occur during union organizing campaigns. This new approach raises serious concerns for employers who might become the target of union efforts to represent their employees.

Unintended Campaign Violations

Union organizing campaigns can take many forms and often come as complete surprises to employers. As a result, managers and supervisors can be ill-equipped to identify and apply the many unique legal rules governing employer conduct. For example:

  • Upon discovering that employees are talking to a union about representation, it is logical to assume that a good first step is to ask employees why they want a union. Once the issues have been identified, problems can be resolved and the perceived need for the union can be removed. These actions, however, are unfair labor practices under the NLRA.
  • Most companies have rules against solicitation and literature distribution. Common sense suggests that these rules can be used to prevent employees from cluttering up parking lots, break rooms and bulletin boards with union literature. One might also assume that these rules provide legitimate grounds to prevent employees from using work time and company property to debate the advantages and disadvantages of unions. However, employee rights as defined by Section 7 of the NLRA may permit employees to do all these things and more. Prohibiting any of them could be unfair labor practices.

It is easy to see how even well-meaning employers can run afoul of the rules governing employer conduct at the beginning of a union campaign. Almost all employers want to obey the law, but the NLRA’s requirements can be counterintuitive and change overnight as new rulings and directives come from the National Labor Relations Board (the Board) and the General Counsel’s office.

Common Remedies

Unfair labor practice charges arising during the early stages of an organizing drive typically include claims of unlawful interrogations (e.g., who wants a union and why), unlawful solicitation of and promises to remedy grievances (e.g., tell us what is wrong and we will fix it) and other acts interfering with employee rights (e.g., stop handing out union literature, stop discussing the union, do not wear union buttons or shirts). These allegations most often are addressed as subjects of administrative unfair labor practice charges filed by a union with a regional NLRB office. These charges can be used to “block” (i.e., postpone) a Board-conducted secret ballot election, if one is scheduled while charges are investigated. The usual remedy for these types of violations requires the employer to post an official NLRB notice informing employees of their rights and promises by the employer to not commit the violations alleged. This can occur as part of a settlement of the charges or as remedy imposed upon a finding of guilt after a hearing before an administrative law judge. Some allegations may also be used as objections seeking to overturn the results of election and rerun it if the union loses.

GC 11-01 Encourages Extraordinary Remedies

The GC 11-01 memorandum encourages NLRB Regional Directors to seek extraordinary remedies when they bring these claims to a hearing that go well beyond usual notice postings. This approach is justified by redefining employer mistakes as serious unfair labor practices. These serious violations, in turn, form the bases for remedy requests that provide unions (not employees) with rights unions do not have under the NLRA and that employees may not want unions to possess. This analysis can also form the bases for seeking injunctive relief from a federal court. For example:

  • Notices are generally posted where employees can see them. GC 11-01 states that Regional Directors should seek remedies that go beyond posting and require employers (or agents of the NLRB) to read notices to assembled employees.
  • Unions generally do not have a right to access employer private property not open to the public. However, GC 11-01 states that Regional Directors should consider asking for orders allowing unions access to company bulletin boards for union postings.
  • GC 11-01 also suggests that in some cases, regions should ask that unions have access to non-work areas of company property to campaign. The memo even recommends that some complaints ask that unions be given the right to make “equal time” speeches when a company addresses its employees in meetings to educate them about the union.

Moreover, current law requires employers to give the union the names and home addresses of all employees in a voting unit (an “Excelsior List”) within seven days of when an election is ordered. The petition for an election must be supported by at least 30% of the employees in the unit that the union seeks to represent through signed union authorization cards or a petition. Employees often consider exposing their home addresses to a union an intrusive invasion of privacy even if they signed union cards and petitions, because the list is used by unions to go to employees’ homes and flood their mailboxes with unwanted correspondence. Nevertheless, GC 11-01 encourages Regional Directors to ask for relief that includes giving the union this list of employee names and addresses well before an election is ordered or before the union has enough signed support to ask for an election.

Employer Take-Aways

Every company needs to be concerned with this new approach to evaluating employer conduct during the early stages of union organizing campaigns. Employers (particularly their frontline supervisors who have daily face-to-face contact with employees) often are not familiar with the nuances of the NLRA. Innocent mistakes based on lack of knowledge may now be used as grounds to grant union access to bulletin boards, give unions access to company property and require employers to give union employee home addresses months before an election is arranged. These mistakes can even result in having to fight requests for injunctive relief in federal court.

The best way to avoid these dangers is to ensure that managers and frontline supervisors are educated about what they can and cannot do and say during union organizing efforts before such campaigns begin.

This training should be a regular part of all management development. Trying to bring supervisors up to speed once a company learns a union is organizing its employees is very often too little too late. Union campaigns can be kept secret for months. As a result, some companies do not hear about union organizing efforts until they get a fax from an NLRB regional office, announcing that an unfair labor practice charge or a representation petition has been filed. By that time, supervisors could have already made enough “serious” mistakes to warrant demands for the types of extraordinary relief discussed in this article. The old adage that “ignorance of the law is no excuse” could then become a painful reality.

Employers also should take the time now to learn the early warning signs of a union campaign and identify if they are in an area or industry targeted by unions. As with most other things in business, understanding and preparing for risks is the best way to minimize company exposure.

For more information regarding the new NLRB enforcement posture and potential management training available to counteract such efforts, please contact the author or any other member of McGuireWoods’ Labor & Employment Team.