The National Labor Relations Act (NLRA) is a federal statute initially passed by Congress in 1935 and, as subsequently amended, governs relationships between employers and their employees regarding employee rights protected by the statute, including the right of employees to participate in, or to refrain from, engaging in concerted protected activities, including the right to join, organize or form unions and to engage in related activities including collective bargaining.
The NLRA applies to most employers whose businesses are engaged in interstate commerce or affect interstate commerce, with limited exceptions. The National Labor Relations Board (NLRB), is the federal government agency that has the authority and responsibility to administer, interpret and enforce the NLRA. As a federal law, the statute applies to employers throughout the United States.
The general counsel for the NLRB recently issued a memorandum instructing her office to “avail themselves of all remedial tools to ensure discriminatees are restored as nearly as possible to the status quo they would have enjoyed but for the unlawful conduct.” In short, this means that when labor charges are brought against an employer, or when the NLRB determines that an employer has engaged in unfair labor practices in violation of the NLRA, the NLRB and its general counsel will be seeking forms of redress not previously utilized. Ultimately, this general counsel’s memorandum builds on the aggressive positions and actions that the NLRB under the Biden administration intends to take in their interpretation and enforcement of the NLRA.
Background
While many have been justifiably worried about the potential impact that the PRO Act and its related statutory amendments would have under federal labor laws, the PRO Act has become mired in the halls of congress as part of the legislative process. But the NLRB is now under majority control of democratic appointee board members, and the new general counsel, who was appointed by the president and confirmed by the Senate in a party-line tie vote broken by the vice president, are on the move.
In their positions, the NLRB and its general counsel are responsible for the enforcement of the NLRA. Through their enforcement of the NLRA, the NLRB and its general counsel interpret and apply the NLRA as they determine appropriate and based on their interpretations of the law. Those interpretations of the NLRA and the actions enforcing the NLRA are often strongly influenced by political ideology and beliefs.
How the current NLRB and general counsel intend to approach, interpret and enforce the NLRA can perhaps be fairly gleaned from President Biden’s statement that he wants to be the “strongest labor president you have ever had.”
Recent actions
The NLRB general counsel has marked out a proposed approach for aggressive enforcement and expanded potential remedies under the NLRA. The general counsel recently issued a formal memorandum (available at this link) that is targeted at significantly expanding the available remedies that may be sought against employers. This potential significant expansion of the board’s traditional remedies will also affect employers’ abilities to reach settlements in many instances, which may likely result in more NLRB litigation.
Under the memorandum, titled “Seeking Full Remedies,” the general counsel has provided guidance on the types of remedies that should be sought against employers. For unlawful firings these remedies, in addition to the traditional reinstatement, backpay compensation and benefits compensation, now include compensation for consequential damages, front pay, and liquidated backpay. For unlawful conduct committed during a union campaign, remedies include expanded union access to employees; reimbursement of union organizational costs; reading of the Notice to Employees and Explanation of rights by a company principal or board agent; publication of the notice in newspapers; visitorial and discovery clauses to assist the agency in monitoring compliance with NLRB orders; extending posting periods for notices; required training for employees, supervisors, and managers regarding employee rights under the NLRA and compliance with board orders; instatement of a qualified candidate of the union’s choice if a discharged employee is unable to return to work; and broad cease and desist orders. The memorandum also encourages apology letters from employers.
Lastly, the memorandum addresses potential settlements. For employers who want to settle pending unfair labor practice charges, new requirements will be instituted. In addition to the potential remedies mentioned above, settlements will now be required to include default language that requires an employer to agree that the allegations are admitted if the employer is found to have violated the terms of the settlement agreement. Furthermore, non-admissions clauses, which have been included in NLRB settlements for many years, and which provide that the employer is not admitting wrongful conduct or liability in settlements will not be allowed in future informal settlement agreements. Ultimately, in many situations these actions will require employers to admit, or at least agree to, any allegations if they want to settle the case.
Takeaway
These actions by the Biden administration’s newly appointed board majority and general counsel should signal a wakeup call to employers. They represent significant pronounced shifts in policy and enforcement under the NLRA. With this shift in perspective and emphasis by the NLRB, and with the president’s stated desire to be the strongest ever labor president, increased union organizing, and related activities ever can be expected.
There are established standards which govern how an employer, and more importantly its managers and supervisors, respond to union activities among the employers’ employees. The failure to respond properly and lawfully, due to a lack of knowledge or otherwise, can and will be costly.
Taking proactive steps to instruct and educate company agents and representatives, including all levels of management and supervision, is one such viable option in preparing to successfully meet challenges and avoid potential liability. By developing a plan of action to prepare for and lawfully deal with NLRA labor law issues, an employer can take efforts to help mitigate potential legal problems and liabilities. In so doing, consulting with experienced legal counsel or other knowledgeable consultants may provide cost effective and beneficial assistance in developing a plan. As Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.”
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.