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With a new Democratic majority in place, observers of labor policy generally expect the National Labor Relations Board (NLRB) to adopt an aggressive stance when it comes to enforcing the National Labor Relations Act (NLRA). For employers that the Board deems to have violated that law, one element of that stance will likely include remedial orders that include dubious requirements, such as mandating access to the employer’s property or requiring the employer to read aloud a Board notice.
To that end, the NLRB’s General Counsel, Jennifer Abruzzo, on September 8 released a guidance memo in which she directed the agency’s regional offices to “request from the Board the full panoply of remedies available” for alleged violations, including those two among others.
Whether federal courts will choose to enforce orders with such remedies is another question. A decision last year by the U.S. Court of Appeals for the Sixth Circuit suggests that some of them may not be as enthusiastic as the Board about doing so.
The decision involved a case dating back to 2014, when several employees of the food supplier Sysco began an effort to unionize their workplace. After the organizing effort garnered enough support, an election was held, but the employees voted 82-71 against union representation. As might be expected, the union involved objected to the results and alleged that the employer had engaged in a variety of unfair labor practices.
An administrative law judge agreed with the union and recommended an order requiring the company to recognize and bargain with the union based on its allegedly unlawful conduct. The NLRB reversed that aspect of the judge’s recommendation but upheld others, including a notice-reading order and union access provisions, which prompted Sysco’s appeal to the Sixth Circuit.
Accepting the NLRB’s findings and conclusions, the court agreed with the “traditional” remedies the Board had ordered, namely a new election, notice posting, and make-whole provisions for two employees who had suffered adverse personnel actions. However, it said, “[t]he special remedies are another thing.”
With regard to the order requiring union access to Sysco’s facilities, the court noted that the union had collected authorization cards from almost 100 out of 162 employees and said that “neither the General Counsel nor the Union has made any showing that Sysco prevented the [union] from reaching Sysco's employees.” Thus, it concluded that “[o]rdering access to a company's facilities and employees ‘cannot be justified as a remedial measure’ unless it is ‘necessary to offset the direct consequences or effects of an employer's unlawful conduct,’” which was not the case here.
The court was less charitable in its assessment of the Board’s order requiring Sysco to publicly read a notice to its employees during work hours. Saying it would “join [its] sister circuits in their skepticism of such orders,” the court quoted the D.C. Circuit, which said “it is foreign to our system to force named individuals to speak prescribed words to attain rehabilitation or to enlighten an assembled audience.”
The court went on to say that “such orders mandate a ‘confession of sins’ and conjure up ‘the system of ‘criticism-self-criticism’ devised by Stalin and adopted by Mao,’” and it criticized the order for requiring two particular employees to conduct such a reading and “stand at attention as human demonstratives in the employer's confession of sins.”
Suffice it to say that the Sixth Circuit declined to enforce the notice-reading order as well. Hopefully other courts will follow suit if the NLRB goes too far again, which it seems determined to do.