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NLRB General Counsel pushes for additional remedies in first contract bargaining cases
Traditionally, the National Labor Relations Board has sought bargaining orders as standard remedies in connection with unfair labor practice charges involving first contracts, and has sought injunctions and other special relief only as extraordinary remedies where the employer’s conduct was egregious.

Now, in a significant departure from that approach, General Counsel Ronald Meisburg has instructed all Regional Offices dealing with such cases to consider seeking as standard remedies injunctive relief under Section 10(j) and other special remedies beyond a bargaining order. Meisburg’s initiative is strikingly similar to the “heightened remedies” provisions that the Employee Free Choice Act, if enacted, would apply.

The special remedies include requiring bargaining on a prescribed or compressed schedule, and periodic reports on the status of bargaining; a minimum six-month extension of the certification year; and reimbursement of bargaining costs.

The General Counsel believes that the decision to seek special remedies should be guided by a consideration of whether the first contract violations are “likely to stymie the bargaining process by unduly delaying negotiations, unlawfully increasing the bargaining expenses of the other party, undermining the union’s support, or otherwise causing a decline in a party’s bargaining strength.” Such violations, according to the General Counsel, might include outright refusals to bargain or overall bad-faith bargaining; refusal to meet at reasonable times; the use of bargaining agents without adequate bargaining authority; refusal to provide information critical for negotiations; tactics that prolong bargaining; unilateral changes that distract from legitimate issues separating the parties, force the union to bargain from a position of disadvantage or cause the union to appear powerless in the eyes of employees; or unlawful discharge of union supporters. 

The General Counsel’s policy initiative is a quiet effort to force agreement in first contract negotiations. The potential impact of these changes, if adopted by the Board and if coupled with the first contract provisions of the Employee Free Choice Act, should motivate employers to contact their Senators to urge them to oppose passage of the Employee Free Choice Act.

To read the General Counsel’s memorandum, click here.

On your mark, get set - Employee Free Choice Act is at the gate   
The Employee Free Choice Act is at the gate, and the bell is about to ring! The Senate is expected to vote this week on this critical piece of legislation. Click here to contact your senator.  

Democrats seek to undo key NLRB ruling on supervisory status
The Democrats on the House Education and Labor subcommittee, at the behest of organized labor, are promoting the pro-union Re-Empowerment of Skilled and Professional Employees and Construction and Tradeworkers Act. The RESPECT Act would effectively rewrite the NLRA definition of “supervisor” to overcome the impact of the Board’s 2006 decision in Oakwood Healthcare, Inc. In Oakwood, the NLRB ruled that permanent and rotating charge nurses are “supervisors” and therefore not eligible to vote in representation elections. See Constangy Client Bulletin #366 on the Oakwood Healthcare case.

The RESPECT Act would require that the employee spend a majority of his or her work time acting in a supervisory capacity and would also delete the words “assign” and “responsibly to direct” from the definition of “supervisor.” The Act is another proposed incremental change in longstanding labor law designed to facilitate union organizing activities. Employers should let their legislators know that they oppose this legislation.

To see the RESPECT Act bills, click here (H.R. 1644) andhere (S. 969).

NLRB requires General Counsel to prove that “salts” would actually have worked during backpay period  
The NLRB recently ruled in Oil Capitol Sheet Metal, Inc., that it will no longer apply to union organizer “salts” the usual rebuttable presumption that the salts would have worked indefinitely for the employer. (A “salt” is an employee of a union who seeks employment with a company for the purpose of organizing its employees.) The three-member Board majority held that salts, “unlike other applicants for employment, . . . often do not seek employment for an indefinite duration; rather, experience demonstrates that many salts remain or intend to remain with the targeted employer only until the union’s defined objectives are achieved or abandoned.”

For this reason, the Board majority ruled that in salting cases the General Counsel will be required “as a part of his existing burden of proving a reasonable gross backpay amount due, to present affirmative evidence that the salt/discriminatee, if hired, would have worked for the employer for the backpay period claimed in the General Counsel’s compliance specification.” The majority supported its position by noting that “much of the uncertainty as to the duration of the backpay period is attributable to the union and salt/discriminatee rather than to the wrongdoing employer . . .” The dissenting Board members complained that the decision “treats salts as a uniquely disfavored class of discriminatees.”

General Counsel seeks quarterly compound interest
on Board monetary remedies
General Counsel Meisburg issued a memorandum in May directing all Regional Directors and Resident Officers to begin seeking quarterly compound interest in all unfair labor practice cases where a monetary award is available. If the Board adopts Meisburg’s proposal, which would not apply to cases that are already pending, it will be the first change in the Board’s interest rate policy since 1987, when it began using the same interest rate used by the Internal Revenue Service in cases of underpayment of taxes (the short-term Federal rate plus three percent).

To read Meisburg’s memorandum, click here.   

Representation elections down in 2006, but union victories up
During 2006 the NLRB supervised only 1,648 representation elections, as compared with 2,142 in 2005. The number of representation elections has dropped every year since 1996, when about 3,300 elections were supervised. However, 2006 was not all bad for unions: they won 61.5% of the representation elections. This was a slight increase over the win rate from 2005, when they won 61.4%, and a continuation of a ten-year trend of win-rate increases. 

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