National Labor Relations Board Showing Signs of Agenda
Recent actions by the National Labor Relations Board may be providing employers with an insight into its agenda.
Three (3) of the four (4) members of the National Labor Relations Board (NLRB or Board) are attorneys that formerly represented labor unions. Chair Wilma B. Liebman is a former attorney for the Bricklayers and Allied Craftsmen; Mark Pearce is a former partner at Creighton Pearce Johnsen & Giroux, where he represented various labor unions; and recess appointment Craig Becker served as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. It should come as no surprise that the Board is now showing signs of an agenda that favors employees and unions.
For nearly fifty (50) years, the Board has ordered interest to be paid on backpay awards; however, for more than twenty (20) years, the NLRB rejected the urge of a succession of NLRB General Counsels that sought the use of compound, rather than simple, interest. On October 10, 2010, the NLRB revised its policy for the assessment of interest on make-whole remedies in Jackson Hospital Corporation d/b/a Kentucky River Medical Center, 356 NLRB No. 8 (2010). Under the new policy, interest on make-whole awards is to be compounded on a daily basis, using the established methods for computing backpay and for determining the applicable rate of interest.
On March 11, 2011, Acting General Counsel, Lafe Solomon, released Memorandum GC 11-08, which gives Regional Offices direction on implementing new procedures for calculating remedies. In addition to utilizing compound interest, the NLRB is making additional changes with respect to remedies. For example, although prior Board decisions provide that expenses incurred by employees found too have been discriminated against when searching for work were payable only to the extent they did not exceed interim earnings. Under current Board law, in quarters where employees found too have been discriminated against had expenses but no earnings, they are not entitled to reimbursement for these expenses.# Pursuant to Memorandum GC 11-08, the Acting General Counsel has declared that search-for-work and work-related expenses will be calculated separately from backpay and will be charged to employers regardless of whether the employee found too have been discriminated against received any interim earnings during the period. The reimbursement of these expenses is not limited to the amount of gross backpay an employee found too have been discriminated against may be entitled to. Memorandum GC 11-08 also directs Regions to seek a tax component in all future cases to reimburse employees found too have been discriminated against for the excess federal and state income taxes owed as a result of receiving a lump-sum backpay award covering more than one year of backpay
On February 14, 2011, the Board issued a decision in Stephens Media d/b/a Hawaii Tribune Herald, severing the question of whether the employer had a duty to provide the union with certain employee witness statements. Long standing Board precedent clearly establishes that the duty to furnish information “does not encompass the duty to furnish witness statements themselves.” Fleming Cos., 332 NLRB 1086, 1087 (2000), quoting Anheuser-Busch, Inc., 237 NLRB 982, 985 (1978). However, on March 2, 2011, the NLRB has invited input* from the public on:
- whether the Board should continue to adhere to the holding in Anheuser-Busch, Inc., 237 NLRB 982 (1978), that an employer’s duty to furnish information under Section 8(a)(5) of the Act does not encompass the duty to furnish witness statements and, if not, what standard should be applied to requests for such statements or any other statements that an employer obtains in the course of its investigation into alleged employee misconduct[.]
Undoubtedly, the Board is not considering an extension of the Anheuser-Busch doctrine: this action clearly suggests an intention to abandon this thirty-three (33) year precedent.
On March 11, 2011, as part of “guidelines to help employees who are illegally discharged receive full compensation in backpay awards”+, Acting General Counsel, Lafe Solomon, issued Memorandum GC 11-07, urging reconsideration of two 2007 NLRB decisions: Grosvenor Resortand and St. George Warehouse. In Grosvenor Resort, 350 NLRB 1197, 1198-99 (2007).the Board required that allegedly illegally discharged employees to start looking for a new job within two weeks of being fired. In St. George Warehouse, 351 NLRB 961, 964-65 (2007), the Board shifted the burden from the employer to the General Counsel to prove that the allegedly illegally discharged employee diligently pursued work throughout the backpay period. In Memorandum GC 11-07, the Acting General Counsel directed the Regions to identify cases that may provide successful vehicle for reversing these two Board decisions.
As member Becker and Acting General Counsel Solomon are serving by virtue of recess appointments, their terms expire on December 31, 2011. It appears that prior to their departure, the Board may be attempting to affect as much pro-union and pro-employee change as possible. Employers with matters at the National Labor Relations Board in 2011 can expect to deal with an activist Board that does not necessarily feel constrained by prior precedent.
# 3English Mica Company, 101 NLRB 1061 (1952), West Texas Utilities Company, Inc., 109 NLRB 936 (1954), Mastro Plastics Corporation, 136 NLRB 1342, (1962).