Recent NLRB Policy Changes Focus on Remedies

November 9, 2010

After much anticipation regarding what the reconstituted National Labor Relations Board’s agenda would be, the past month has revealed that one of the Board’s and the Acting General Counsel’s priorities is revamping a number of the Board’s policies on remedies. Those changes are discussed below.

Interest Awards

In late October, the Board issued a decision that changes a long-standing remedial policy on how interest on monetary awards is calculated. In Kentucky River Medical Center, 356 NLRB No. 8, the Board unanimously held that interest on backpay and all other monetary awards will be compounded on a daily basis. This is a break from its previous policy that interest was calculated on a simple basis.

The Board concluded that “compound interest better effectuates the remedial policies of the Act than does the Board’s traditional practice of ordering only simple interest and that, for the same reasons, interest should be compounded on a daily basis, rather than annually or quarterly.” The Board justified its change in policy by pointing to the “norms” in private lending practices, as well as the IRS’ policies regarding compound interest. This case applies retroactively to all pending cases, no matter what stage they are in, unless doing so would be manifestly unjust.

Remedial Notices

Another long-standing Board policy required the posting of paper notices of violation in an appropriate physical location within the employer’s plant or office. The Board’s decision in J. Picini Flooring, 356 NLRB No. 9, alters this policy by requiring that employers who customarily communicate with employees using electronic means (i.e. email, internet, intranet), must post remedial notices using those same electronic means. The Board reasoned that in order to achieve the remedial goal of posting a notice, “notices must be adequately communicated to the employees or members affected by the unfair labor practices found.” The Board found that while “traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members.”

10(j) Injunction Initiative

On September 30, 2010, the NLRB’s Acting General Counsel, Lafe E. Solomon, announced an initiative to strengthen the Agency's response to “nip in the bud” cases with a more streamlined and efficient 10(j) injunction procedure. Solomon characterized “nip-in-the-bud” cases as those where a pro-union employee is terminated during the course of a union organizing drive, and the discharge thereby “‘nips in the bud’ all of the employees’ efforts to engage in the core Section 7 right to self-organization.” The new procedure adopts the following timeline:

Upon the filing of a charge, the Regions must identify potential 10(j) organizing campaign discharges.
The lead affidavit should be taken within 7 calendar days from the filing of the charge and the charging party’s evidence should be obtained within 14 calendar days of the filing of the charge.
Where the evidence obtained from the charging party “points to” a prima facie case on the merits, the Region must notify the employer that it is considering 10(j) and request a position statement. The position statement must be submitted within 7 calendar days of the written notification.
The Region must make a determination of the case on the merits within 49 days from filing, and a decision regarding whether 10(j) relief is appropriate should be made at the same time.
The Region must then submit all meritorious 8(a)(3) discharge cases to the Injunction Litigation Branch (“ILB”) within 7 days of the merit determination.
Once the ILB receives the case, it is reviewed and the ILB makes a determination within 2 business days as to whether 10(j) relief is warranted.
The Acting General Counsel then determines whether he agrees with the ILB’s determination, and his authorization must be submitted within 2 business days.
The case is submitted to the Board for final review and approval. Once the Board approves, the Region must file the 10(j) papers with the appropriate District Court within 2 business days.

Overview