• NLRB Takes End of Year Steps to Enhance Union Organizing
  • December 28, 2010 | Authors: Mark B. Goodwin; Clinton S. Morse
  • Law Firms: LeClairRyan - Washington Office ; LeClairRyan - Roanoke Office
  • On December 22, the National Labor Relations Board ("NLRB") published in the Federal Register a Notice of Proposed Rulemaking that would require employers to post to employees a notice of their National Labor Relations Act rights in the workplace. The wording of the proposed posting is no different than what is already required by Executive Order for Government contractors, but the NLRB would treat failure to comply as an unfair labor practice, subject to sanctions, under the NLRA and would toll the statute of limitations for employees without actual or constructive knowledge of an employer's violation. Members of the public have 60 days to comment on this proposal.

    Given that this is the first NLRB rulemaking proceeding in over a decade, it may be a trial balloon to see how it flies before the NLRB issues a more significant rulemaking on "quickie elections" in union organizing campaigns sometime in 2011.

    As another end of year measure new NLRB enforcement guidance was issued on December 20 by Acting General Counsel Lafe Solomon as part of an initiative to "systematically" provide remedies for National Labor Relations Act (NLRA) violations by employers during union organizing campaigns. This initiative has significant implications for employers interested in maintaining non-union status, and is further indication that a former union attorney need not be appointed and confirmed as NLRB General Counsel in order for the unions to get what they have been looking for from the NLRB General Counsel's office.

    In September 2010, Acting General Counsel Solomon established an expedited process for complaints seeking federal court Section 10(j) injunctions in cases involving allegedly discriminatory discharges of employees during union organizing campaigns.

    Now Mr. Solomon has instructed all enforcement offices nationwide that the "serious effect" of other violations "cannot be overlooked." Among the other violations he lists are those known as "TIPS" (i.e., threats, interrogation, promises, and spying), including "solicitation of grievances" and "any employer conduct that interferes with employees' ability to communicate between themselves and with a union that has a damaging impact on employee free choice." It is worse, writes Solomon, if high ranking company officials are involved or if the employer acts "swiftly" in response to a union campaign.

    Because the "impact" of such practices by employers during union organizing is "so severe," Mr. Solomon has instructed the NLRB's enforcement offices to seek the following remedies in addition to Section 10(j) federal court injunctions for discharges:

    • Reading (not merely posting) to employees, presumably by a company executive if he or she was involved in a violation, of notices to employees concerning the details of a company's violation of the NLRA and the company's intention not to repeat such action;

    • Access by the union to the company's bulletin boards, including electronic bulletin boards, to communicate concerning the union and issues in the organizing campaign; and
    • Access by the union to employees' names and addresses earlier and for a longer period of time than is normally required when a petition for representation is filed by a union.


    Moreover, if an enforcement office of the NLRB 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," the enforcement office is instructed to seek the following additional remedies against the employer:

    • Union access to nonwork areas on the employer's property during employees' nonwork time;
    • Union access to the employer's property to respond to any employer address on the subject of representation; and
    • Affording the union the right to deliver a speech to employees at an appropriate time prior to the election.

    NLRB enforcement offices are instructed to seek authority from Mr. Solomon to pursue these remedies as part of a Section 10(j) federal court injunction complaint or as part of any NLRB ordered remedy.

    The Unions and the General Counsel's office will likely contend that Mr. Solomon is doing nothing more than instructing the NLRB's Regional Offices to follow the Board's long standing precedents concerning enforcement of the NLRA. In reality, however, former Republican NLRB General Counsel Ronald Meisburg did not issue instructions like the ones coming from Mr. Solomon's office, and it is plain to long time observers of the NLRB that there is a "new sheriff in town."