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The NLRA Affects All Employers, Not Only Those with Unions

Part I:  Expect Increased NLRB Enforcement

By Mary Funk

Given the political makeup of Congress, it is unlikely that there will be any sweeping legislative changes on issues historically important to labor unions.  But the unions aren't just sitting on the sidelines.  Labor is pushing its agenda forward by encouraging more aggressive enforcement of existing policies, including enforcement of the National Labor Relations Act ("NLRA").  Given the current makeup of the National Labor Relations Board ("Board"), such efforts are receiving an enthusiastic reception.

The current Board consists of Democrats Wilma Libeman (chair), Mark Pearce and Craig Becker (serving a recess appointment until the end of 2011), and lone Republican Brian Hayes.  President Obama has nominated Republican Terrance Flynn for the final spot on the Board, and has also nominated Lafe Solomon for General Counsel.  Solomon is already serving as acting General Counsel and has been reappointed twice to that position.  The Board's General Counsel serves as its top investigative and prosecutorial officer with supervisory responsibility over all the Regional Offices, and guides policy on issuing complaints, seeking injunctions and enforcing the Board's decisions.

In his interim position, Solomon has:

- Vowed to make seeking 10(j) injunctive relief in federal court during organizing campaigns his "personal priority."  (There is a relatively low standard for a union to prove injunctive relief is necessary against employer; and the win rate for unions who request injunctive relief is over 90%.)

- Stated his intent to seek special remedies during organization campaigns if violations are proven against an employer, such as:

     (1) Requiring a management official or board agent to read a notice advising employees that the employer committed an unfair labor practice ("ULP");

     (2) Allowing union access to company bulletin boards;

     (3) Permitting union access to employee names and addresses, even before an election is scheduled and before the Excelsior list would normally be required.

- Instructed regional offices to pursue extraordinary remedies for 8(a)(5) violations during first contract bargaining sessions, even in garden variety situations  such as delaying a meeting.  Remedies could include reimbursement of union bargaining expenses and legal fees, periodic reports on bargaining status to the Board, notice to be read by management officials, or a compressed bargaining schedule.

On the horizon is the possibility that every employer in United States,  non-union and union alike, will be required to post an NLRA notice in every workplace, alongside the standard FMLA and FLSA postings.  The proposed notice is very detailed and would specifically advise all employees that they have the right to organize a union, assist or join a union, bargain collectively, discuss terms and conditions of employment, take action to improve their working conditions, and refrain from such activities.  The proposed notice is also noteworthy for what it does NOT say.  It does not advise employees that they have the right under Communications Workers of American v. Beck, to object to paying union dues or agency fees for political purposes.  The time for making public comments on the proposed notice expired in February.  We can expect much political wrangling over this notice and its contents.



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