Employment Law Daily NLRB: Special remedies essential to ensure that employees may freely exercise Section 7 rights
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Wednesday, December 12, 2018

NLRB: Special remedies essential to ensure that employees may freely exercise Section 7 rights

By Ronald Miller, J.D.

On remand from the Second Circuit, a three-member panel of the Board agreed with the General Counsel that special remedies were essential to ensuring that an employer’s employees could freely exercise their Section 7 rights to address the lingering effects of the employer’s unfair labor practices. Despite a litany of unfair labor practices committed by the employer during a union organizing campaign, the appeals court denied enforcement of a Gissel bargaining order because the Board failed to account for the mitigating effects of the employer’s remedial actions, employee turnover, management turnover, and the passage of time since the unfair labor practices were committed. Among the special remedies, the employer was to provide the union with the names, addresses, telephone numbers, and email addresses of its current unit employees (Novelis Corp., December 7, 2018).

Bargaining order. During a union organizing campaign, the employer engaged in a laundry list of unfair labor practices, including restoring Sunday premium pay; threatening employees if they selected the union; selectively enforcing posting and distribution rules; prohibiting employees from wearing union insignia and removing union literature; interrogating employees; soliciting grievances and promising improved working conditions; demoting an employee for a Facebook posting; and maintaining an overly broad email use policy, among other things. Because of the severity of the unfair labor practices, the Board found that a bargaining order was appropriate under NLRB v. Gissel Packing Co.

The employer petitioned the Second Circuit for review of the Board’s order and the Board filed a cross-application for enforcement. Subsequently, the Board petitioned the court to sever and remand two workplace rules violations involving the employer’s email use rule and social media policy for further consideration in light of the Board’s decision in The Boeing Co. Thereafter, the appeals court issued its decision, granting enforcement in part and denying enforcement in part. Specifically, the court enforced the Board’s order with respect to all violations—save the two workplace rule violations the Board had asked it to sever and remand.

Remedial actions. The appeals court also denied enforcement of the bargaining order. According to the court, the Board failed to account for the mitigating effects of the employer’s remedial actions, employee turnover, management turnover, and the passage of time since the unfair labor practices were committed. As a result, the court concluded that “it is inappropriate to impose union membership without a reasoned finding, absent here, that a new, fair election more than three years after the violations is not reasonably possible.”

Special remedies. Because the decision of the appeals court made it perfectly clear that a Gissel bargaining order was unenforceable here, the Board rejected the contention of the General Counsel and the union that the court’s decision afforded the Board an opportunity to reconsider the appropriateness of a Gissel order. Accordingly, the Board deleted the previously issued Gissel bargaining order.

However, the Board agreed with the General Counsel that special remedies were necessary in order to dissipate as much as possible any lingering effects of the employer’s unfair labor practices and to ensure that a fair election could be held if the union files a petition.

In this instance, the Board found that the following special remedies were essential to ensuring that employees may freely exercise their Section 7 rights. First, the employer was to supply the union with the names, addresses, telephone numbers, and email addresses of its current unit employees. Second, the employer was to grant the union and its representatives reasonable access to its bulletin boards and all places where notices to employees are customarily posted. The Board concluded that granting these special remedies would enable the union to gain access to and communicate with current employees should it choose to do so. However, because the union had not requested reinstatement of the petition, the Board did not direct a second election.

Workplace rules. Moreover, the Board remanded to an administrative law judge the two workplace rule violations involving the employer’s email use and social media rules for further proceedings consistent with the agency’s decision in Boeing.

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