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Memorandum on Remedial Initiatives

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OFFICE OF THE GENERAL COUNSEL
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.

Notice Initiative

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 employees.

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.

/s/
R.A.S.

MEMORANDUM OM 99-79

cc: NLRBU
Attachment


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 protection
  • 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.
  (rather than)

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.
  (rather than)

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.
  (rather than)

WE WILL NOT discharge employees because of their protected concerted activity.

WE WILL NOT in any similar way frustrate your exercise of any of the rights stated above.
  (rather than)

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 Act.

_________________________________________________________
(Respondent)

Dated:__________________________
By:__________________________________________________
        (Representative)                                          (Title)

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
Telephone: (215)597-7601
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.

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