Executive Summary: More and more, the
National Labor Relations Board is becoming an important government agency for
companies whose employees are not represented by a union. The National Labor
Relations Act applies to non-union employees who engage in concerted, protected
activity, including supporting and forming unions. Companies need to know the
process the National Labor Relations Board will follow when investigating and
prosecuting cases against companies.
Employees in non-union companies have the right to talk
with each other about their wages, benefits and working conditions and also to
form a union to represent them when negotiating with a company. The National
Labor Relations Act lists the types of actions that violate these rights. These
actions are listed in Section 8. Section 8(a) lists the unlawful actions by
companies. Section 8(a)(1) prohibits companies from drafting and implementing
policies and supervisors from making statements and taking actions that coerce
employees or interfere with their rights. Section 8(a)(3) prohibits companies
from treating employees differently because they supported a union. A
termination of an employee violates either Section 8(a)(1) or (3). For example,
many companies have drafted social media policies stating that employees may
not make statements that are disloyal to the company. Then, when employees make
those statements in social media and other employees "like" them, the
company will terminate both the sender and "like" employees. However,
the Board may find that the company violated federal law by having included the
policy in the employee handbook and terminated the employees.
The remedies for a violation of an unlawful discharge
includes reinstatement, the pay the employee would have earned if he had not
been terminated and other remedies to make the former employee whole. The
remedy for a violation of Section 8(a)(1) includes the rescission of the policy
and the posting of a Notice for 60 days. If there were a union election in the
meantime, the remedy could include a rerun election. In the Notice, the company
promises not to violate the Act. Unlike cases in court for discrimination, the
company does not have to pay the attorneys' fees of the union's or government's
lawyers and does not have to pay punitive damages.
National Labor Relations Board
The Board is an agency of the federal government that
investigates, prosecutes and either dismisses cases or rules that a company
violated the Act. The Regional Director makes the preliminary decisions and
supervises the investigators and attorneys in the Regional Offices. The Board
is divided into Regional Offices that investigate and prosecute cases. For
example, the Chicago Regional Office has jurisdiction over Chicago, the Collar
Counties and Northwest Indiana.
The Board's headquarters is in Washington, D.C. In
Washington, the Board consists of a General Counsel who supervises the Regional
Offices, Administrative Law Judges who hear the cases and recommend decisions,
and five Board members who issue the final rulings on the cases. The President
appoints the General Counsel and the five Board members with the advice and
consent of the Senate.
The Charge and Investigation
Either a union, an individual employee or a group of
employees may file a charge against a company. The charge lists the allegations
of wrongdoing. The Regional Office's investigator will investigate those
allegations as well as anything else that he uncovers. Usually, the Regional
Office will investigate a case within 30 days. The investigator first
interviews the witnesses against the company and takes sworn affidavits from
the witnesses. Then the investigator requests cooperation from the company. The
company may agree to submit its witnesses to questioning by the investigator.
The company may or may not agree to allow the investigator to take sworn
affidavits from the company's witnesses. The company may also file a
"position statement" with the Regional Director, setting forth the
facts and arguments why the Regional Director should dismiss the case. The
strategy about how the company will cooperate with the investigator is an
important, key decision, because everything stated in writing to the
investigator becomes evidence against the company in a later trial.
The investigator prepares a "Final Investigative
Report" with the facts, arguments and recommendation that the Regional
Director should either dismiss the case or issue a complaint against the
company. The Regional Director reviews the Report. If the Regional Director
dismisses the charge, the union may appeal to the General Counsel in
Washington, D.C. If the Regional Director issues a complaint, the Regional
Director is deciding only that there is sufficient evidence to believe that the
company may have violated the Act. The Regional Director is not deciding that
the company violated the Act.
If the Regional Director decides to issue a complaint,
the investigator will contact the company and ask if the company wants to
settle the case. If the company settles the case, the company usually must sign
a Settlement Agreement, provide remedies and post a Notice for 60 days. The
company and Regional Director negotiate the settlement. When and how to
negotiate is another key strategy for the company to consider and implement. If
there is no settlement, the Regional Director usually issues the Complaint
within 45 – 60 days after the charge was filed.
The Complaint, Discovery and Trial
The Complaint sets forth the alleged violations of the
Act. In response, the company files an Answer to the Complaint, admitting or
denying the allegations.
Unlike cases in state and federal court, there is no
pre-trial discovery. Instead, about 10 days before the trial, the prosecuting
attorney in the Regional Office issues a subpoena to the company. In the
subpoena, the prosecuting attorney requests the attendance of witnesses at the
trial and also requests the disclosure of company documents. The company may
fight the subpoena or comply with the subpoena. The company can issue a
subpoena on the union and its witnesses.
The trial usually takes place within 3 – 5 months after
the Regional Director issues a Complaint. The case is transferred to an
Administrative Law Judge who will hear the case and issue a Recommended
Decision and Order. However, prior to the trial, the Division of Administrative
Law Judges attempts to settle the case. If the case does not settle, the trial
takes place in front of an Administrative Law Judge. There is no jury. As in a
regular court case, the witnesses are sworn under oath. A prosecuting attorney
for the Board represents the government and the union. The union's lawyer will
also be present and may ask questions. Companies are represented by their
lawyers. The judge hears evidence, decides who is telling the truth, and issues
a written decision, usually within 6 months of the trial. The loser may comply
with the Judge's decision or appeal to the five-member Board in Washington. In
some cases, the company and Board will agree to a settlement of the case after
the Administrative Law Judge issues his opinion, or the company will comply
with the decision.
Appeal
As mentioned, the company may appeal to the five Board
Members located in Washington, D.C. Usually, the appeal is heard by a panel of
three of the Board Members. The appeal is usually by documents and not with
in-person presentations to the Board Members. The Board usually issues its
Decision and Order within one year of the appeal. If the company loses, it may
appeal to one of the federal court of appeals. If the company does not appeal,
it must comply with the Board's Decision and Order.
Injunction
The General Counsel in Washington, D.C. has ordered all
Regional Directors to recommend whether there should be injunctive relief
against companies when unions file charges during a union organizing campaign.
The purpose of an injunction is to impose an immediate remedy for the union and
employees while the case is pending before the Administrative Law Judge and
during appeals from the Administrative Law Judge's Recommended Decision and
Order.
Therefore, during an organizing campaign, the
investigator will investigate and recommend whether an injunctive relief is
appropriate and the Regional Director will file a report with the General
Counsel in Washington regarding the issue of injunctive relief. The General
Counsel decides whether the Regional Director should seek injunctive relief. If
the Regional Director seeks injunctive relief, he or she will file a complaint
in the federal court. The federal court will hold a hearing and issue a
decision either dismissing the injunction or issuing an injunction against the
company. An injunction may issue within days or weeks, but the Administrative
Law Judge and the Board may issue its decisions and orders in months and years.
Action Plan
The Board's process may be long and complicated. Although
the Regional Offices decide cases within 30 days, the ultimate decision by the
Administrative Law Judge and the Board's members in Washington may take years.
Therefore, the company needs to analyze its options and create a strategy for
fighting the charges brought by employees or unions.
For more information about this or any other employment
law topic, please contact Frank Del Barto, Chair of the Employment, Labor &
Benefits Group, at 847.734.8811 or via email at fdelbarto@masudafunai.com.
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