OFFICE OF THE GENERAL
Division of Operations-Management
|MEMORANDUM OM 99-79
||November 19, 1999
TO: All Regional Directors,
Officers-in-Charge, and Resident Officers
FROM: Richard A. Siegel, Associate General Counsel
SUBJECT: Remedial Initiatives
In order to improve the effectiveness of the Agency's
remedial arsenal so that we can more fully achieve compliance with the Board's orders and
the Act, the General Counsel would like to pursue several remedial initiatives. Some of
these initiatives are necessitated by recent economic and technical changes in the
workplace, while others represent an effort to correct longstanding remedial deficiencies.
It is well settled that the Board has broad power to
determine the proper scope of its remedial orders, particularly with respect to
affirmative relief. The Supreme Court "has repeatedly interpreted [section 10(c)] as
vesting in the Board the primary responsibility and broad discretion to devise remedies
that effectuate the policies of the Act, subject only to limited judicial review," in
which the Circuit Courts of Appeals "should not substitute their judgment for that of
the Board in determining how best to undo the effects of unfair labor practices." Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 898-99 (1984). A Board-ordered remedy "should stand
unless it can be shown that [it] is a patent attempt to achieve ends other than those
which can fairly be said to effectuate the policies of the Act." Fibreboard Paper
Products Corp. v. NLRB, 379 U.S. 203, 216 (1964); Virginia Elec. & Power Co. v.
NLRB, 319 U.S. 533, 540 (1943). It has also been noted that the particular means by
which the effects of unfair labor practices are to be expunged are matters "for the
Board and not the courts to determine." International Association of Machinists v.
NLRB, 311 U.S. 72, 82 (1940). Furthermore, "the task of evaluating the
dissipation of the coercive impact of [the respondent's] conduct, like the task of
evaluating its original potency, is one that Congress has entrusted to the Board and its
expertise . . . ." Kenrich Petrochemical, Inc. v. NLRB, 907 F.2d 400, 408-409
(3rd Cir.), cert. denied, 498 U.S. 981 (1990).
In short, it is the Board's institutional role to serve as
a remedial laboratory, which involves a responsibility to periodically rethink and update
its remedial strategies. It is in this spirit that the following initiatives are proposed.
Until there are Board decisions affirming these remedies, we recognize that it will be
difficult to attain them in informal settlements. However, to the extent that a Region can
successfully incorporate these remedies into settlement agreements, seeking these remedies
in the context of settlement is encouraged.
This initiative consists of two parts: the first involves
improving the text of the Board's standard notice language, and the second involves
improving the method of communicating to employees the notice's content by having notices
read as a standard remedial measure. As to the first, the General Counsel will be
submitting to the Board for its consideration a new model for the Board's standard notice(1) that contains several improvements:
- the notice is drafted in layperson's language and without
legal jargon; it contains a statement explaining what the NLRB is and generally describing
an employee's rights under the Act;
- it sets forth the Regional office's address, telephone
number and hours of operation, along with a statement that employees may obtain
information from the Region, in confidence, regarding their rights under the Act;
- it provides a statement, in Spanish, that a Spanish-speaking
Board agent can be made available to talk with them;
- and it provides the Board's Web address.(2)
With respect to the second part of this initiative, the
General Counsel will also request that the Board establish as a standard remedy that a
representative of the respondent read the notice to the employees on work time. At least
three remedial interests are advanced by notice readings. First, it ensures that those
employees with reading deficiencies receive the information. Second, it ensures that those
employees who do not consult respondent's bulletin boards because they do not frequent the
posting areas or are too busy to read such notices receive the information contained in
the notice. See John W. Teeter, Jr., Fair Notice: Assuring Victims Of Unfair Labor
Practices That Their Rights Will Be Respected, 63 UMKC L.Rev 1, 5 (1994).
Third, having a representative of the respondent confirm the employees' rights under the
Act publicly and face-to-face provides more effective reassurance that their rights will
be honored than would a written communication. See Teeter at 5, 6, 16 (compilation of
studies showing that face-to-face meetings are far more effective than written
communications). As the courts have noted, "the reading requirement is an effective
but moderate way to let in a warming wind of information and, more important,
reassurance." J.P. Stevens & Co. v. NLRB, 417 F.2d 533, 540 (5th Cir.
1969). Furthermore, because a particular representative of the respondent would not be
singled out to perform the reading, there should be no misperception that the purpose of
the reading is to embarrass or humiliate the respondent.(3)
Compensatory Damages Initiative
There are times when our backpay calculations do not fully
"make whole" the discriminatee because the calculations include only lost wages
and not other damages attributable to the discriminatee's job loss, such as a loss of a
car or a house due to the discriminatee's inability to make monthly payments. Because of
this, the General Counsel would like to present to the Board test cases in which the
General Counsel specifically seeks as part of the remedy a requirement that respondent
make the discriminatees whole for all compensatory damages.
It is well settled that the Board is not limited to one
type of affirmative order, namely reinstatement with or without backpay, but may
compensate for any definite loss suffered as a result of the respondent's unfair labor
practices. Virginia Electric & Power Co. v. NLRB, 319 U.S. at 539-540, 543-544.
See also NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 242-42 (1939); I Leg.
Hist. NLRA at 1360 (eliminating general term "restitution" and attempting to
specifically reference particular remedies, i.e., reinstatement is not intended to narrow
the types of remedies the Board can seek). The failure to cover these compensatory damages
means that the discriminatee will not be placed in the position in which the discriminatee
would have been but for the discrimination.
Consequently, the Regions should submit to the Division of
Advice cases that the Regions determine will serve as appropriate test cases for this
issue. There are a number of factual scenarios that might serve as appropriate test cases.
For example, a case in which the discriminatee was unable to make car or house payments
because he was unable to find employment after his unlawful discharge, layoff and/or
termination might present a good test case.
Remedies for Organizing Interference Initiative
The Board has recognized that employer unfair labor
practices waged against a union organizing campaign can inhibit employees' Section 7
rights so drastically as to warrant an added dose of remedial medicine. While the Board
has achieved judicial approval for special remedies, in particular ordering employers to
grant unions special rights of access to employees, these remedies have been generally
reserved for cases characterized as "extraordinary." The empirical evidence,
however, is strong that employer willingness to engage in unfair labor practices to
counter organizational activity is far from extraordinary, and that it is both widespread
and devastatingly effective. See Paul Weiler, Governing the Workplace: The Future of Labor
and Employment Law 111-14 (1990) (reviewing econometric studies tying increase in unfair
labor practices to decline in union election success rates). For that reason, the remedies
that the Board has already developed in this area should no longer be reserved for only
the most egregious cases of unlawful interference with organizing campaigns.
1. Existing Remedies for Anti-Organizing Campaigns
The Board's efforts to remedy anti-organization campaigns
have centered on providing the union with various types of access to the employees. In Fieldcrest
Cannon, Inc., 318 NLRB 470 (1995), the Board augmented its traditional
cease-and-desist, affirmative, and posting provisions with "special notice and access
remedies . . . necessary to dissipate fully the coercive effects of the unfair labor
practices found." 318 NLRB at 473. Specifically, the Board ordered that Fieldcrest:
(1) publish the notice, in Spanish and English, in the company's internal newsletter and
mail copies to all employees on the company's payroll going back to the onset of the
unfair labor practices,(4) (2) convene its employees
during working time and have the company's vice president read the notice to them, (3)
publish the notice in a local newspaper of general circulation twice weekly for four
weeks, (4) supply the union with names and addresses of its unit employees, (5) allow the
union reasonable access to its bulletin boards and all places where notices to employees
are customarily posted, (6) grant the union access to nonwork areas during employees'
nonwork time, (7) give the union notice of, and equal time and facilities for the union to
respond to, any address made by the company regarding the issue of representation, (8)
afford the union the right to deliver a 30-minute speech to employees on working time
prior to any Board election in a time frame of not more than 10 working days before, but
not less than 48 hours before, the election. With regard to the conduct of a rerun
election, the Board ordered that it be conducted at a neutral, off-premises site deemed
suitable by the Regional Director. The Fourth Circuit enforced these "special"
access aspects of the Board's remedy. Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65,
74 (4th Cir. 1996).
The Board ordered similar provisions in Three Sisters
Sportswear Co., 312 NLRB 853 (1993) and in Monfort, Inc., 298 NLRB 73, 86-89
(1990) and, to a somewhat lesser degree, in United States Service Industries, Inc., 319
NLRB 231 (1995) and S. E. Nichols, Inc., 284 NLRB 556 (1987). In each of the above
cases, the Board achieved enforcement in the Courts of Appeals.(5)
2. Expanding the Application of Existing Remedies
The modes of access ordered by the Board in Fieldcrest
Cannon and the other cases cited above are well-considered remedial responses to
employers' unlawful anti-union campaigns. Granting unions uninhibited access to bulletin
boards and other media of communication at the workplace and, in particular, mandating
union "captive audience speeches" clears the way for open communications between
the union and the employees and affords the union an opportunity to undo the effects of
the employer's unlawful conduct. While initially it made sense to cultivate acceptance of
such remedies in test cases involving severe and widespread unlawful interference with
organizing campaigns, the Board should not continue to reserve these remedies for only the
most egregious cases. An employer that issues a single company-wide bulletin threatening
plant closure may poison the atmosphere against organizing as effectively as one that
engages in a large number of violations over a protracted period of time.
Accordingly, the Regions should submit to Advice test cases
involving unlawful interference with union organizing campaigns that do not involve the
breadth or severity of unlawful conduct found in the above-noted cases. To be sure, the
courts have indicated their reluctance to enforce special access remedies on a routine
basis. Therefore, we should not suggest such remedies in every CA case involving an
organizing effort, but should do so where the unlawful interference can be shown to have a
likely deleterious effect due to its tendency to reach a significant number of unit
Front Pay Initiative
Given the efficacy of front pay in other federal
anti-discrimination litigation, the General Counsel is interested in determining whether
front pay would be a useful addition to the Board's remedial arsenal, and would like to
identify test cases that can be used to make this determination. Front pay is a remedy
currently employed by the courts under Title VII and certain other federal
anti-discrimination statutes.(6) It is a monetary remedy
awarded a discriminatee who, for any number of reasons (such as employer hostility), may
be unable or reasonably unwilling to accept reinstatement with his or her employer. In
those circumstances, courts have awarded money to cover wages and benefits for the period
running from the discriminatory act (or from the termination of the back pay period, if
back pay is also awarded) to the time when the employee could be expected to attain
employment similar to what she would have enjoyed had she not been subjected to
discrimination. Front pay has been characterized as an award for that reasonable future
period required by the victim of discrimination to re-establish his or her rightful place
in the job market.
The concept of front pay as a remedy, if adopted, would
expand the potential remedies available to the Board and allow for recovery in those cases
where the discriminatee would have reasonable grounds for refusing reinstatement, or where
the Board is otherwise satisfied that reinstatement is not appropriate or is unlikely to
be accomplished. Successful litigation is often undermined in our cases when a
discriminatee loses interest in returning to work. With a growing economy, unfair labor
practice discriminatees obtain interim employment at higher wages, thus reducing the
deterrent effect of the make whole order by reducing or eliminating respondent's
liability. Front pay would afford the possibility of greater monetary recovery for
employees and provide corresponding leverage to the General Counsel in settlement
discussions. If successfully adopted, such a remedy might deter unfair labor practices
because of the higher potential cost. This additional requirement may have a prophylactic
effect on employer and union conduct.
In deciding whether a case would serve as a good test case
for referral to Advice, the Region should keep in mind that front pay and reinstatement
are mutually exclusive remedies; where reinstatement is appropriate and feasible, front
pay will be inappropriate. Accordingly, the Region will want to look first for situations
where reinstatement is highly inappropriate, or perhaps impossible. A case where there has
been some egregious treatment of the discriminatee (e.g., physical assault or serious
nonphysical harassment or abuse), or where the employer has expressed antiunion sentiments
in unusually strong terms, would seem to be good test cases.
Establishment of Remedies/Best Practices Committee
As noted at the beginning of this memorandum the
consideration of remedies should be an ongoing exercise wherein the Agency is continuously
evaluating the efficacy of available remedies and whether other appropriate remedies
should be pursued. Accordingly, I am establishing a Remedies Committee to review other
remedies which were discussed at the Regional Directors Conference, including inter alia,
the mailing of notices to all affected employees, more stringent remedies in the refusal
to bargain area, such as requiring periodic reports on the status of bargaining, and
appropriate backpay remedies for undocumented aliens. The mission of the Remedies
Committee goes beyond addressing specific issues raised at the RD Conference. The idea
would be that the committee would meet periodically to continue to address the remedial
scheme for Board cases into the future. Concomitant with that mission is the development
of a best practices report whereby the best practices already being utilized in compliance
offices throughout the country can be compiled and shared with all Regions. The Best
Practices Committee can work as a subcommittee to the Remedies Committee to ensure that
there is no duplication of effort.
MEMORANDUM OM 99-79
1Copy of this notice is attached and may be used
by the Regions as a basis for altering notice language for settlements.
2Regions should be alert to the growing number
of employers in which e-mail messages and electronic bulletin boards constitute normal
methods of communicating with employees. In these circumstances, the Regions should also
request that the Board's notice be posted through such electronic media.
3However, the Regions should continue to request
that a particular representative of the respondent perform the reading in those
circumstances where the representative had extensive personal involvement in flagrant
unfair labor practices, in order to place "on the notice the imprimatur of the person
most responsible for the illegal acts in question." See, e.g., Loray Corp., 184
NLRB 557, 558 (1970).
4Due to the demographics of the workforce, all
of the Board's notice remedies in Fieldcrest included translations into Spanish.
5Three Sisters Sportswear Co. v. NLRB, 55
F.3d 684 (D.C. Cir. 1995) (table); Monfort, Inc. v. NLRB, 965 F.2d 1538, 1548 (10th
Cir. 1992); NLRB v. United States Service Industries, Inc., 107 F.3d 923 (D.C. Cir.
1997) (table); NLRB v. S. E. Nichols, Inc., 862 F.2d 952, 960-64 (2d Cir. 1988).
6Although the 1991 amendments to Title VII
expressly authorize the remedy of front pay, the pre-1991 version of the statute did not.
The original remedial provisions of Title VII were modeled on the National Labor Relations
Act, and authorized the courts to "enjoin the respondent from engaging in [the]
unlawful employment practice, and order such affirmative action as may be appropriate,
which may include, but is not limited to, reinstatement or hiring of employees, with or
without back pay . . . , or any other equitable relief as the court deems
appropriate." Notwithstanding case law clarifying that remedies under the Title VII
were (like those under the NLRA) to be remedial only, not punitive, and limited to
compensation for economic injury, federal courts in most circuits had little difficulty
finding authority to award front pay under the pre-1991 language. For that reason, it
appears that the courts of appeals would also be receptive to the award of front pay by
the Board, in appropriate circumstances.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
[PLAIN LANGUAGE PROVISIONS]
The National Labor Relations Board has found
that we violated federal
labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
- Form, join or assist a union
- Choose representatives to bargain with us on your behalf
- Act together with other employees for your benefit and
- Choose not to engage in any of these protected activities
WE WILL NOT refuse to give Plant Workers Local l
information that it needs to represent the unit employees.
WE WILL NOT refuse to furnish the Union with information
that is relevant and necessary to its role as the exclusive collective bargaining
representative of the unit employees.
WE WILL NOT spy on employees' union activity.
WE WILL NOT engage in surveillance of union activity.
WE WILL NOT fire you because you acted together with other
employees for your benefit and protection.
WE WILL NOT discharge employees because of their protected
WE WILL NOT in any similar way frustrate your exercise of
any of the rights stated above.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the
The National Labor Relations Board is an independent
Federal agency created in 1935 to enforce the National Labor Relations Act. We conduct
secret-ballot elections to determine whether employees want union representation and we
investigate and remedy unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board's Regional Office set forth below. You
may also obtain information from the Board's website: www.nlrb.gov.
615 Chestnut Street - 7th Floor
Philadelphia, PA 19106-4404
Hours of Operation: 8:30 a.m. to 5:00 p.m.
Si quiere, se puede hablar con un agente de La Junta
Nacional de Relaciones del Trabajo en confianza. [A Board agent who speaks Spanish can be
made available to speak with you in confidence.] La pagina electronica de red de La Junta
Nacional de Relaciones del Trabajo tambien tiene informacion en espanol: www.nlrb.gov. [Information in Spanish is also available on
the Board's website: www.nlrb.gov.]
THIS IS AN OFFICIAL NOTICE AND MUST NOT
BE DEFACED BY ANYONE
This notice must remain posted for 60 consecutive days from
the date of posting and must not be altered, defaced or covered by any other material. Any
questions concerning this notice or compliance with its provisions may be directed to the
above Regional Office.