American Bar Association Fifth Annual Section of Labor and Employment Law Conference. Seattle, Washington. November 4, 2011

Transcription

1 American Bar Association Fifth Annual Section of Labor and Employment Law Conference Seattle, Washington November 4, 2011 Gene Mechanic Of Counsel, Bennett, Hartman, Morris & Kaplan, LLP 210 S.W. Morrison Street, Suite 500 Portland, Oregon (503)

2 Table of Contents 1. Introduction General Counsel's Memoranda Relating to Section 10(j) General Principles Relating to Section 10(j) Remedies "Special Remedies" and Gissell Bargaining Orders in Section 10(j) Cases Union Organizing Campaigns Involving Section 10(j) Relief Section 10(j) Relief in Cases Involving Bargaining Obligations Conclusion Appendices Memorandum GC Appendix 1 Memorandum GC Appendix 2

3 Gene Mechanic Page 1 1. Introduction The National Labor Relations Act ("N.L.R.A.") Section 10(j), 29 USC 160(j), grants the Board the power, upon issuance of an unfair labor practice complaint, to petition the United States District Court "for appropriate temporary relief or restraining order as [the court] deems just and proper." During the past few years, the NLRB s General Counsel and Regional Directors have sought Section 10(j) relief in a variety of contexts. The object of a Section 10(j) injunction is to remedy the specific harm caused by the misconduct and return the parties to the status quo prior to the misconduct. But the accomplishment of this goal is difficult in the real world, where an employer's threats, coercion or other misconduct will establish a mindset for the employees which cannot easily be changed. This paper will describe some of the Section 10(j) remedies sought by the NLRB General Counsel and Regional Directors, and the view of those requests by the courts. 2. General Counsels' Memoranda Relating to Section 10(j) In Memorandum GC 10-05, past General Counsel Ronald Meisburg, issued a report on Section 10(j) authorizations and litigation during his term, from January 4, 2006 through April 30, (See Appendix 1.) There were 112 Section 10(j) injunctions sought. All but a few of those proceedings

4 Gene Mechanic Page 2 involved one of four categories: 1) Interference with organizational campaign (no majority); 2) Withdrawal of recognition from incumbent; 3) Undermining a bargaining representative; 4) Successor refusal to recognize and bargain Memorandum GC appended the "Regional Office and Injunction Litigation Branch Process in Section 10(j) Cases." This outline stated that [t]here are certain categories of unfair labor practices in which it is recognized that Section 10(j) relief would be clearly warranted, such as nipin-the-bud discharges during an active organizing drive, unlawful withdrawals of recognition, or picket line violence not controlled by authorities. 1 In Memorandum GC 10-07, Acting General Counsel Lafe Solomon discussed "effective Section 10(j) remedies for unlawful discharges in organizing campaigns." Solomon stated that it is an important priority during his term to ensure that effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces. 1 During the period from June 1, 2001 to December 31, 2005, when Arthur Rosenfeld was General Counsel, there were 70 section 10(j) injunctions sought. Ten of those proceedings involved efforts to revoke minority union recognition and 11 of the cases related to interference with a union organizing campaign where there was no majority. Memorandum GC

5 Gene Mechanic Page 3 "When an employer commits such unfair labor practice, it 'nips in the bud' all of the employees efforts to engage in the core Section 7 right to self organization." * * * First, we are focused on prompt investigation of 'nip-in-the-bud' cases and prompt settlement of meritorious charges. Such settlements are a timely and highly effective remedy. In addition, in some of the meritorious 'nip-in-the-bud' cases which did not settle, the board authorized Section 10(j) proceedings and we obtained injunctions. Like settlements, these Section 10(j) injunctions have provided a substantial and relatively swift remedy by requiring employers to offer interim reinstatement to unlawfully discharged employees pending the board's order." GC Memorandum then provides an "Optimal timeline for processing nip-in-the-bud discharge cases." (See Appendix 2.) 3. General Principles Relating to Section 10(j) Remedies Section 10(j) is intended to preserve the status quo prior to the alleged misconduct, pending final action by the Board. See, e.g., Garcia ex. rel. NLRB v. Sacramento Coca-Cola Bottling Co., Inc. 733 F. Supp. 2d. 1201, 1207, E.D. Ca. (2010); Scott ex. rel. NLRB v. Stephen Dunn and Associates, 241 F.3d 652, 660 (9th Cir. 2001). When evaluating a petition under Section 10(j), the court must analyze the request "through the prism of the underlying purpose of Section 10(j), which is to protect the integrity of the

6 Gene Mechanic Page 4 collective bargaining process and to preserve the board's remedial power while it processes the charge." Miller v. Pacific Medical Center,19 F.3d 449, (9th Cir. 1994). Other than with respect to their interim nature, the remedial aspects of 10(j) should be no less limiting than the Board's general authority to remedy unfair labor practices under Section 10(c). Thus, the relief sought should "dissipate fully the coercive effects of unfair labor practices." See, e.g. Fieldcrest Cannon, 318 NLRB (1995), enforcement granted in part and denied in part, 97 F.3d 65 (4th Cir. 1996). "The task of the NLRB in applying Section 10(c) is to 'take measures designed to recreate the relationships that would have been had there been no unfair labor practice'." 318 NLRB at 473, citing Franks v. Bowman Transportation Company, 424 U.S. 747, 769 (1976). Section 10(j) does not impose a more stringent burden for obtaining mandatory as opposed to prohibitory injunctive relief. See, e.g., Blyer ex. rel. NLRB v. One Stop Kosher Supermarket, 720 F. Supp. 2d. 221 (E.D. N.Y. 2010). In One Stop Kosher, the federal district court recognized that an order requiring an employer to bargain with a union pending a final determination by the Board "is clearly mandatory in nature, but is frequently granted without any alteration to the usual Section 10(j) standards." See, e.g.,

7 Gene Mechanic Page 5 Hoffman v. Inn Credible Caterers, 247 F.3d 360, 364 (2nd Cir. 2001) "Special Remedies" and Gissell Bargaining Orders in Section 10(j) Cases Pursuant to N.L.R.A. Section 10(c)1, the Board has designed permanent remedies in unfair labor practice cases which should provide guidance on the remedies which may be applied in Section 10(j) cases to return the workplace to the atmosphere which existed prior to the unfair labor practices. 3 For example, the Board's decision in High-Point Construction Group, (2004) pet. for rev. denied, enf. granted, 2005 U.S. App. Lexis 9845, 177 LRRM 2640 (4th Cir. 2005) presents circumstances where the Board has issued "special remedies" in an organizing campaign short of a Gissell bargaining order. NLRB v. Gissell Packing Company, 395 U.S. 575 (1969). 4 In High-Point, the Board found the employer to have violated Section 8(a)(1) 2 The Second Circuit has encouraged district courts to give "serious consideration to the insertion of appropriate time limits in Section 10(j) injunctions." Kaynard v. Mego Corp., 633 F.2d 1026, 1035 (2nd. Cir. 1980). Nonetheless, in One Stop Kosher, the district court rejected time limits on the injunction where an employer unlawfully refused to bargain with the union, finding that such limit might encourage the employer to engage in dilatory conduct to avoid reaching an agreement prior to that date. 3 Section 10(c) grants the Board the power to issue both a cease and desist order "and to take such affirmative action as will effectuate the policies of this Act." 4 In Gissell, the Supreme Court stated: If the Board finds that the possibility of erasing the effects of past [unfair labor] practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue[.] 395 U.S. at

8 Gene Mechanic Page 6 of the N.L.R.A. when it "intentionally" and "boisterously" interrupted a union meeting, intimidating employees and creating the impression of surveillance of employees' union activity, when it threatened employees with loss of work, when the owner interrogated employees about union meetings, and when it threatened employees with plant closure after the union filed its representation petition. The Board recognized that this set of violations would generally preclude the possibility of holding a fair election because of its lasting adverse effect. 342 NLRB at 408. Nonetheless, it rejected the A.L.J.'s recommendation that a bargaining order be issued. Rather, it found "that the imposition of special remedies should serve to cleanse the atmosphere of the effects of the [employer's] unlawful conduct, and that a bargaining order is therefore unnecessary." Id. In that respect, it agreed with the A.L.J. that the employer's conduct was sufficiently egregious to warrant a broad cease and desist order enjoining the respondents not only from committing again the specific violations found, but also from violating the Act "in any other manner." The Board also ordered the employer to hold a meeting with unit employees during working time at its facility and have a responsible management official read the Board notice of violations and remedies or permit a board agent, in the presence of a responsible management official, to

9 Gene Mechanic Page 7 read the notice to employees. 5 The High-Point Board noted that each case must be fully examined for the "infinitely various circumstances which will influence employee perceptions of such prohibited conduct." 342 NLRB at 407. More recently, in American Directional Boring, 353 NLRB 166 (2008), enf. den U.S. App. Lexis (8th Cir. 2010), reaffirmed, 355 NLRB 172 (2010), the Board held that an employer's misconduct during an organizing campaign warranted a bargaining order. It found that the employer's widespread threats of closing its plant and job loss, interrogations, impression of surveillance and the discharge of 13 employees, including prominent union supporters, would persist over time and, even though more than five years had passed since most of the unfair labor practices occurred and there had been a substantial turnover of employees, a Gissell bargaining order was warranted. The Board's decision in Monfort, 298 NLRB 73 (1990), enfd. 965 F.2d 1538 (1992), is also illustrative of a situation where the Board has gone beyond traditional remedies. In Monfort, the Board held that the employer unlawfully discriminated against job applicants at a newly opened plant after it had closed a plant covered by a union contract. It issued a broad cease and 5 In High-Point, citing McAllister Towing and Transportation Company, 341 NLRB 394 (2004), the Board stated that "the public reading of the notice is an 'effective but moderate way to let in a warming wind of information and more important, reassurance.'" Id.

10 Gene Mechanic Page 8 desist order, prohibiting the employer from committing the specific violations found and from violating the Act "in any other manner." In addition, the Board ordered the employer to apply its hiring criteria to all applicants in a non-discriminatory manner and to offer to hire all former employee applicants who would have been hired but for the employer's unlawful discrimination employment into the positions for which they would have been hired or, if those positions no longer exist to substantially equivalent positions, dismissing, if necessary, any and all persons hired to fill such positions. The Board further ordered the employer to make whole all discriminates for any loss of wages and other benefits. The Board also found the employer's unfair labor practices to be "so numerous, pervasive and outrageous" that it ordered the employer to mail as well as publish the Board notices and to comply with special access remedies, as follows: 1) Supply the union, on request made within one year of the date of [the order] the names and address of its current employees; 2) On request, grant the union and its representatives reasonable access to the [employer's] bulletin boards and all places where notices to employees are customarily posted; 3) On request, grant the union reasonable access to its plant in non-work areas during the employees' non-work time;

11 Gene Mechanic Page 9 4) Give notice of, and equal time and facilities for the union to respond to, any address made by the "employer" to its employees on the question of union representation; and 5) Afford the union the right to deliver a 30 minute speech to employees on working time prior to any Board election which may be scheduled in which the union is a participant. The Board order provided that the above provisions (2) through (5) shall apply for a period of two years from the date of the posting of the notice. 298 NLRB at Union Organizing Campaigns Involving Section 10(j) Relief The Board's effort to move more quickly and aggressively in ending nip-in-the-bud threats and coercion by employers during union organizing campaigns is a move in the right direction. Unfortunately, the lasting effect of an employer's misconduct is often triggered immediately and cease and desist orders do little to ensure that employees are able to freely choose whether to be represented by the union, unimpeded by fear of employer reprisals. Indeed, if the Board authorizes the General Counsel to seek a Section 10(j) injunction, it would seem that most often the employer's misconduct has risen to the level where a fair election is permanently endangered.

12 Gene Mechanic Page 10 Accordingly, an interim bargaining order should be the remedy in many Section 10(j) cases involving employer misconduct during union organizing campaigns. The interim bargaining order would show employees that the government has undertaken steps to protect them and give the employees an understanding of the role that the union can play in promoting their rights at the bargaining table. Even if the interim bargaining order is not transformed into a permanent bargaining order, its existence will have enhanced the likelihood that an election will occur on an even playing field. Moreover, even assuming that an interim bargaining order is not appropriate, the Board could seek a High-Point or Monfort type remedy, providing for specific affirmative action to be taken by the employer to cleanse its misconduct. This could include an order that the employer be limited in its ability to campaign against the union, that managers and supervisors receive training and that union organizers be provided with employee contact information and facility access. Employers will argue that such an order would frustrate their speech rights under Section 8(c) of the Act. But appropriate limitations on future speech should be deemed permissible as a remedial measure where the employer's past speech was so coercive that the limitation is necessary to effectuate the purposes of the Act. A review of Board decisions, petitions for Section 10(j) injunctions, and federal court reviews of those petitions, failed to show a consistent pattern for

13 Gene Mechanic Page 11 determining whether a traditional remedy, a special remedy, or a bargaining order is warranted. In Hooks ex. rel. NLRB v. Ozburn-Hessey Logistics, LLC, 775 F. Supp (W.D. Tenn. 2011), the Board sought a Section 10(j) injunction after an A.L.J. found that the employer had committed numerous violations of the N.L.R.A. to discourage employees from supporting the union. Managers threatened employees with reprisals if they supported unionization, including comments that they would not be eligible for a bonus and other benefits. Managers confiscated and destroyed pro-union literature on tables in the employee breakroom and shouted at employees who had placed the literature on the tables. The H.R. manager called the police to remove two union organizers who were lawfully distributing pro-union literature on public property. She also told employees at a group meeting that they would lose their jobs if they participated in an economic strike. Finding that there was reasonable cause to believe that the employer engaged in unfair labor practices and that injunctive relief was just and proper, the district court ordered the employer to cease and desist from committing the coercive and threatening acts and inhibiting the employees' right to distribute union literature or otherwise interfering with the employees' Section 7 rights. It also issued affirmative relief, including full reinstatement of terminated employees to their former jobs or, if those jobs no longer exist or have been filled, to substantially equivalent positions, without

14 Gene Mechanic Page 12 prejudice to their seniority or other rights, and expungment of the nontermination discipline issued to other employees. Moreover, the employer was required to post copies of the court's order and provide a sworn affidavit as to how it had complied with that order within 20 days of its issuance. See, also, in Rik Lineback ex. rel. NLRB v. Frye Electric, Inc., 539 F. Supp. 2d (S.D. Ind. 2008), where a district judge adopted the findings of a magistrate that a Section 10(j) injunction should be issued against a company which had terminated union supporters during an organizing campaign and ordered a remedy similar to the remedy in Hooks. In Pye ex. rel. NLRB v. Excel Case Ready, 2000 U.S. Dist. Lexis (Dist. Mass. 2000), Excel began hiring staff for a new facility and the union initiated organizing efforts. Employees who became active in that effort were then fired. The court found that the evidence indicated that the firings, among other unfair labor practice, had a substantial, chilling effect on union activity. In essence, the unionization effort ground to a halt. At least some employees had been intimidated to the extent that they were afraid to act on their previously expressed interest in the union. The court issued a preliminary injunction ordering interim reinstatement of the employees to their former positions, or equivalent positions and the customary posting and sworn affidavit establishing compliance with a court order. However, despite the evidence that the employer's coercion instilled such fear in the employees

15 Gene Mechanic Page 13 that they would not revert to their prior support for the union, neither an interim bargaining order nor specific relief to cleanse the atmosphere was part of the remedy. In Sharp ex. rel. NLRB v. Koronis Parts, Inc., 927 F. Supp (D. Minn. 1996), the court reviewed a request for a Section 10(j) injunction involving an employer which terminated and otherwise disciplined union supporters, instructed employees to not hand out union literature during breaks, awarded bonuses and gifts to employees to discourage union support, threatened to close its facility if the union got in, created the impression of surveillance, interrogated employees regarding their support for the union and transferred employees in retaliation for their union activities. Yet, other than requiring the employer to revoke its policy prohibiting employees from discussing their wages, the temporary injunction included no affirmative relief to rectify the damage caused by the employer's misconduct. 6. Section 10(j) Relief in Cases Involving Bargaining Obligations A large number of the cases in which the Board seeks a Section 10(j) injunction involve unfair labor practices committed by an employer after a union has established its majority status and the employer refuses to bargain or otherwise seeks to undermine the union's role as the representative of the employees. For example, in Chester ex. rel. NLRB v. Ebensburg Care Center,

16 Gene Mechanic Page 14 LLC, 211 U.S. Dist. Lexis (W.D. of Pa. 2011), an employer acquired a nursing home that for many years had been owned and operated by a county employer. The new employer hired most, but not all of the employees who had worked for the nursing home when it was county owned, but refused to recognize or bargain with the two unions that represented employees at the county nursing home. The Board contended that the employer was a successor employer under the N.L.R.A. and that its refusal to recognize and bargain with the unions violated the Act, as did its decision not to hire certain of the county employees who were union activists. The Board sought several remedies as part of its petition for Section 10(j) relief. It requested an order directing that the employer recognize and meet and bargain in good faith with the unions, hire the union activists to their former jobs, maintain postings of the order during the Board's entire administrative proceedings, grant government agents access to its facilities to monitor compliance with the postings, and confirm through sworn affidavit that it has complied with the terms of the order. The Board also sought that any order would expire six months from the date of its issuance, provided that it may seek a 30 day extension if it appeared that the A.L.J. decision is imminent. The court agreed with the Board's request for preliminary relief compelling the employer to recognize and meet and bargain in good faith with the union. But the court disagreed that the immediate hiring of two union

17 Gene Mechanic Page 15 activists was necessary to prevent irreparable harm, in light of the fact that several other union officials were still employed. 6 In Pye ex. rel. NLRB v. The Longy School of Music, 759 F. Supp. 153 (Dist. Mass. 2011), the employer exhibited substantial animosity toward the union after it won an election to represent the school's faculty. The president repeatedly mentioned that the school was moving away from a "model of democracy" and that she was making changes that were "non-negotiable." Many members of the faculty became fearful that they would receive letters of non-renewal of their annual teaching contracts. Indeed, eight bargaining unit members were told that their contracts would not be renewed. The school also made changes to employee health benefits. The union and employer met several times to discuss an initial collective bargaining agreement but those negotiations went nowhere. The Board issued a complaint alleging that the school violated the Act by terminating the employment of the eight union employees and taking the other actions. The court issued a Section 10(j) injunction, ordering the school to reinstate terminated faculty until it and the union bargained to an impasse over the 6 Ebensburg provides a good overview of the different approaches taken by the federal circuit courts on the standard of review for Section 10(j) petitions and the impact of the Supreme Court's ruling in Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S. Ct. 365, 172 L. Ed. 2d. 249 (2008), which held that "a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Prior to Winter, the Third, Fifth, Tenth and Eleventh circuits applied the "reasonable cause" standard to 10(j) injunction through the two factor test: (1) There is reasonable cause to believe that the alleged unfair labor practices have occurred; and (2) the requested injunctive relief is 'just and proper'." 211 U.S. Dist. Lexis at 21. Other circuits had been applying the traditional preliminary injunction standards.

18 Gene Mechanic Page 16 effects of the decision to restructure the faculty and to pay them the salary they would have received had they been retained for the school year. But the court did not require the school to place the faculty in their teaching slots since it would, the court found, have caused hardship to the school and its students if there was an adjustment of faculty assignments midway through the school year. In Mattina ex. rel. NLRB v. Ardsley Bus Corporation, 711 F. Supp. 2d. 314 (S.D.N.Y. 2010), the union employer was seeking to bargain a successor agreement, with the procedure for the picking of bus routes being the major issue in dispute. The union filed several grievances alleging breaches of the agreement, including failure to pay wages and other compensation, refusal to apply the seniority provisions, and improper maintenance of buses. A decertification petition was filed and the company refused to allow the union to attend meetings relating to the bus route procedure. The NLRB General Counsel filed a complaint against the company based on the union's charges that the employer unlawfully instituted changes in the employees' terms and conditions of employment regarding pay rates, assignment of charter routes, and other matters. A hearing was held before an A.L.J., who found that the company committed a number of unfair labor practices. In reviewing the Board's Section 10(j) injunction request filed after the A.L.J. decision, the court held

19 Gene Mechanic Page 17 that the employer's unlawful withdrawal of recognition from the union and unilateral change to the terms and conditions of employment, combined with the causal connection between the employer's practices and the employee disaffection, showed that the union was likely to continue to lose support absent temporary injunctive relief. It issued an order that the employer recognize and bargain in good faith with the union, pending final resolution by the Board of the underlying dispute." Overstreet ex. rel. NLRB v. El Paso Disposal, L.P., 625 F. 2d 844 (5th Cir. 2010) involved the Board's petition for a Section 10(j) injunction seeking to force the employer to recognize and bargain in good faith with a certified union and rescind unlawful unilateral changes and working conditions, as well as reinstate former strikers. In addition, the Board sought an order requiring the employer to adopt the union's proposed dues check-off provision. The Fifth Circuit affirmed the district court's injunction order which adopted all of the Board's requested remedies. 668 F. Supp. 2d. 988 (W.D. Texas 2009). A runaway shop was at issue in Hirsch ex. rel. NLRB v. Dorsey Trailers, Inc., 147 F. 3d 243 (3d. Cir. 1998). In Dorsey, the union and employer had a collective bargaining agreement covering a Pennsylvania plant where workers manufactured dump and flatbed trailers. The employer warned that if no successor agreement could be reached or if the union were

20 Gene Mechanic Page 18 to strike, it would close the plant. The parties' were unable to reach an agreement and a strike commenced to protest unfair labor practices of the employer. After the strike began, the company notified the union of its impending purchase of a facility in Georgia and intention to move its work there. It offered to continuing bargaining over the effects of the decision. Thereafter, the union unconditionally offered to come back to work but by then the employer was seeking substantial concessions. The employer then formally notified the union of its decision to close the Pennsylvania plant and move its operations to Georgia and South Carolina. The General Counsel issued a complaint charging Dorsey with numerous violations of the N.L.R.A., including threatening employees with closure of the plant if the workers went on strike. The district court denied the Board's petition for a Section 10(j) injunction because: "(1) The request was untimely made, noting the 14 month delay in seeking Section 10(j) relief; (2) the maintenance of the vacant plant was a cash drain on Dorsey; (3) the workers in Dorsey's Georgia plant could lose their jobs should restoration be ordered; (4) the vast majority of the former Pennsylvania workers had found new jobs; (5) the sale of the plant would bring new jobs to the region; and (6) the Board could order Dorsey to build a new plant and employ the Pennsylvania workers, if the plant were

21 Gene Mechanic Page 19 sold." However, the Fifth Circuit rejected the lower court's reasoning, holding that although the protracted delay was not entirely justified, it was insufficient under the facts to overcome the primary consideration in evaluating the just and proper standard: that of safeguarding the Board's remedial powers. Accordingly, the appellate court remanded the case to the trial court to issue a Section 10(j) injunction which implemented the A.L.J.'s decision ordering a remedy that included the restoration of the Pennsylvania plant. 7. Conclusion Unless the remedy sought by the Board and issued by the court in a Section 10(j) proceeding is specifically and realistically geared to returning the workplace to the atmosphere which existed prior to the commission of unfair labor practices, the value of the time, expense and effort required to seek the injunction is questionable. More importantly, without such a remedy, there is little incentive for perpetrators of unfair labor practices to refrain from violating the Act to achieve their goal. Consequently, it is crucial that the Board and the courts take an expansive view of their remedial authority and focus on the remedies which will dissipate fully the coercive effects of unfair labor practices.

22 OFFICE OF THE GENERAL COUNSEL MEMORANDUM GC June 15, 2010 TO: FROM: SUBJECT: Regional Directors, Officers-in-Charge, and Resident Officers Ronald Meisburg, General Counsel End-of-Term Report on Utilization of Section 10(j) Injunctive Proceedings January 4, 2006 through April Attached hereto is a report that I recently sent to the Board concerning Section 10(j) authorizations and litigation during my term as General Counsel. I believe that you will find it informative as well as helpful in the management of your Section 10(j) program. The accomplishments outlined in this report are the result of hard work and dedication by you and your staffs. You can take pride that these efforts have contributed to a more effective enforcement of the Act. /s/ R.M. Attachments Distribution: NLRBU Washington Special Regional Special Release to the Public MEMORANDUM GC APPENDIX 1-1

23 APPENDIX 1-2

24 OFFICE OF THE GENERAL COUNSEL MEMORANDUM GC September 30, 2010 TO: FROM: SUBJECT: All Regional Directors, Officers-in-Charge, and Resident Officers Lafe E. Solomon, Acting General Counsel Effective Section 10(j) Remedies for Unlawful Discharges in Organizing Campaigns An important priority during my time as Acting General Counsel will be to ensure that effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces. When an employer commits such unfair labor practices, it nips in the bud all of the employees efforts to engage in the core Section 7 right to self-organization. Discriminatory discharges are among the most serious nip-in-the-bud violations of the Act. An unremedied discharge sends to other employees the message that they too risk retaliation by exercising their Section 7 rights. As one court has characterized employees reaction, no other worker in his right mind would participate in a union campaign in this plant after having observed that other workers who had previously attempted to exercise rights protected by the Act have been discharged and must wait for three years to have their rights vindicated. Silverman v. Whittall & Shon, Inc., 1986 WL 15735, 125 LRRM 2152 (S.D.N.Y. 1986). In addition, the continued absence from the workplace of unlawfully discharged union leaders means not only that the negative message from the unfair labor practices persists but also that the remaining employees are deprived of the leadership of active and vocal union supporters. And with the passage of time, the discharged employees are likely to be unavailable for, or no longer desire, reinstatement when ordered by the Board. Given all of these consequences, employee resumption of union organizing is unlikely, and the ultimate Board order is ineffective to protect rights guaranteed by the Act. Over the years, the Agency has developed a variety of very effective strategies for minimizing these consequences. First, we have focused on prompt investigation of nip-in-the-bud cases and prompt settlement of meritorious charges. Such settlements are a timely and highly effective remedy. In addition, in some of the meritorious nip-in-the-bud cases which did not settle, the Board authorized Section 10(j) proceedings and we obtained injunctions. Like settlements, these Section 10(j) injunctions have provided a substantial and relatively swift remedy by requiring employers to offer interim reinstatement to unlawfully discharged employees pending the Board s order. APPENDIX 2-1

25 2 My goal is to give all unlawful discharges in organizing cases priority action and a speedy remedy. For years the Agency has been committed to a vigorous Section 10(j) injunction program as a highly effective tool for achieving meaningful real time remedies. As Acting General Counsel, I am committed to continue and enhance this important program for nip-in-the-bud cases. In addition, I am committed to the most expeditious administrative litigation possible for such cases. The program outlined below has been developed to streamline the processing of nip-in-the-bud cases involving discharges to assure that the passage of time does not undercut our ability to provide effective remedies in these cases. This program covers all stages of case processing from identification of cases as potential Section 10(j) cases by Regional Offices through Board authorization and litigation of Section 10(j) cases to trial and decision of the merits cases. This program has been developed with invaluable input from all offices of the Agency, especially from the field. I intend to continually monitor whether the program is successful in achieving effective and timely remedies in organizing cases and to see how these priorities actually function in the context of the day-to-day work of your offices. In consultation with you, I will evaluate what, if any, modifications are needed. Set forth below is what I consider the optimal timeline for processing nipin-the-bud cases and additional procedures to facilitate these streamlined procedures. The timeline and procedures should be considered as best practices by all branches and regional offices in handling these cases. Optimal Timeline for Processing Nip-in-the-bud Discharge Cases Potential Section 10(j) organizing campaign discharge cases should be identified as soon as possible after the filing of the charge and tracked by the Region until their resolution. In addition, it is critically important that Regions identify such cases in CATS, and subsequently in NxGen, by adding discharge organizing campaign in Notes, which will permit reporting on the number and handling of these cases. Where possible, the lead affidavit should be taken within 7 calendar days from filing of charge in all nip-in-the-bud discharge cases. Regions should attempt to obtain all of the charging party s evidence within 14 calendar days from the filing of the charge. If charging party s evidence points to a prima facie case on the merits and suggests the need for injunctive relief, the Region should notify the charged party in writing that the Region is seriously considering the need for Section 10(j) relief and request that a position statement on that issue APPENDIX 2-2

26 3 be submitted to the Regional Office within 7 calendar days after the written notification. This letter can be combined with the letter putting the charged party on notice of the allegations raised by the charge and should generally be sent within 21 days from the filing of the charge. A Regional Director will normally make a determination on the merits of the case within 49 calendar days from the filing of the charge. If the decision is to issue complaint, the decision with respect to the need for Section 10(j) relief should be made at the same time. Regions will endeavor to quickly issue complaints in these nip-in-the-bud discharge cases and to set prompt administrative hearings. When estimating the length of a trial for purposes of trial schedules, Regional Attorneys should allow sufficient time to finish a trial and to avoid the possibility of a continuance. If Regions encounter any problems with obtaining early and continuous hearing dates, they should immediately contact Operations Management. Regions must submit to the Injunction Litigation Branch (ILB) all meritorious 8(a)(3) discharge nip-in-the-bud cases, including those currently pending in Regions and those pending before an administrative law judge, that do not settle. I will personally review and decide whether Section 10(j) authorization should be sought in all such cases. Neither discriminatees lack of desire for interim reinstatement nor a union s abandonment of its organizing campaign are, in themselves, grounds to decline to seek Section 10(j) relief. A union s abandonment of an organizing campaign is itself evidence of chill and does not remove the negative message that discharges have on employee statutory rights. And a court order offering interim reinstatement may cause the resumption of employee interest in organizing with the previous or a new union, whether or not the offer is accepted. Regions may use the Expedited Hearing Procedures (GC Memorandum and OM Memorandum 06-60) in lieu of immediately seeking Section 10(j) authorization if a non-cooperating respondent has raised a significant Wright Line or economic defense or if proceeding to the administrative hearing would seriously facilitate settlement. Expedited hearings in such cases should be scheduled not later than 28 calendar days after issuance of complaint. If the Region is unable to obtain a 28-day hearing from the Division of Judges, please immediately contact Operations Management. A short form memorandum regarding Section 10(j) relief in nip-in-the-bud cases should be submitted to ILB. Absent unusual circumstances, this memorandum should be submitted to ILB not later than 7 calendar days from the merit determination or close of an expedited hearing. Regions APPENDIX 2-3

27 4 will also submit to ILB the parties position statements, if any, and party representative information. ILB will decide all nip-in-the-bud Section 10(j) cases within 2 business days after receipt of the Region s memorandum and will notify the Region as to whether it agrees that Section 10(j) relief is warranted. If ILB has questions for the Region before it is able to decide the Section 10(j) request, it will seek this information as soon as possible after reviewing the case. In these cases, ILB will prepare a 1-2 page cover memorandum, addressing briefly only relevant new facts obtained from the Region and issues not addressed by the Region that might be of interest to the Board. ILB will send this memorandum to the Acting General Counsel within 7 calendar days after receiving the last information it needs from the Regional Office. ILB will also forward a copy to the Region. I will review and decide the Section 10(j) case, and if I agree, I will sign the memorandum requesting Section 10(j) authorization within 2 business days of receipt from ILB. Upon my approval, ILB will submit the Section 10(j) request to the Board and notify the Region. Within 10 business days after receiving notice from the ILB that it agrees Section 10(j) relief is warranted in these nip-in-the-bud cases, the Region will draft its Memorandum of Points and Authorities and Proposed Order and send it to ILB for review. Within 3 business days of receipt, ILB will complete its review, make substantive comments and provide additional/different arguments, case support, and any modifications to the order and return the papers to the Region for filing with the court if the Board so authorizes. Regions will file papers with the District Court within 2 business days from notification that the Board has authorized Section 10(j) relief or receipt from ILB of its review of draft court papers, whichever is later. As in the past, if the Region believes that the time for filing should be postponed for good reason, such as settlement discussions, it should consult with ILB regarding whether additional time for filing should be allowed. Additional Best Practice Procedures to Facilitate Timely Processing of Nip-in-thebud Discharge Cases: When it is clear that documentary evidence or the testimony of neutral witnesses is needed during an investigation, the Region should make a request for the documents or witnesses and if it is not forthcoming, investigative subpoenas should be issued. Regions should not wait for the decision-making agenda to issue necessary subpoenas. APPENDIX 2-4

28 5 Regions are encouraged to assign more than one agent, when needed, to investigate and prepare Section 10(j) cases involving nip-in-the-bud discharges. Just and proper evidence should be taken at the same time in the investigative process as obtaining the evidence on the merits of the charge. Because multiple charges are filed as new events unfold, the time for making a Regional 10(j) determination may become protracted. Consistent with OM 01-33, Regions should focus on the core allegations for which Section 10(j) is needed in organizing campaign discharge cases. By proceeding with the Section 10(j) case before opening the administrative hearing, including using affidavits rather than the administrative transcript, the Region may complete its investigation of later-filed non-10(j) charges and avoid Jefferson Chemical problems while at the same time seeking Section 10(j) relief on the core violations. When considering whether Section 10(j) relief is appropriate, the Region should inform the parties that the Region is prepared to seek Section 10(j) authorization seeking reinstatement of discharged employees. These conversations should be documented in the investigative file. To avoid adjournments and postponements, when scheduling the administrative hearing, the Region should liberally estimate the number of days required for the case to be heard. Once before an administrative law judge, the Region should oppose any request for postponement or extensions of time for filing documents. If a postponement is granted, the Region should contact ILB to evaluate whether a special appeal contesting the postponement should be filed with the Board. Regions generally should consult with ILB if Regions desire to use the administrative record instead of affidavits to try the Section 10(j) case. However, if a Region is confident that the administrative record will close within 2-3 weeks after receiving Board authorization, the Region may independently decide to try the case on the administrative record and move the court to do so when filing its Section 10(j) petition. The Region should notify ILB of its decision to do so. The key to success of this program is the free flow of information and communication between the Region and ILB throughout the process. Regions should not hesitate to contact ILB for advice and assistance at all phases of their Section 10(j) work. APPENDIX 2-5

29 6 These cases can drain resources in the field. As soon as you identify a Section 10(j) case where the adequacy of your resources is an issue, please notify your Deputy or AGC in Operations Management and assistance will be provided. In addition, in evaluating your staffing needs overall, if you have an active Section 10(j) program which you believe has not been sufficiently factored in to your staffing, please consult with your Deputy or AGC. I also ask that you advise your local Practice and Procedure Committees of this program and request their full cooperation in expediting these very important cases. I trust that you will embrace this critical program with the same high level of enthusiasm and commitment with which you perform all of your duties so that, together, we can enhance our ability to effectuate the Agency s mission. cc: NLRBU NLRBPA Release to the Public /s/ L.S. MEMORANDUM GC 10-07