Acting NLRB General Counsel Lafe Solomon reiterated a commitment to seek ways for unions to gain greater access to employer property during organizing situations, as well as gain greater leverage in first contract negotiations.  In his GC Memorandum 11-11.pdf  dated April 12, 2011, the Acting General Counsel identified the types of matters that are required to be  submitted to the NLRB’s Division of Advice (“Advice”) for analysis and guidance.  For the uninitiated, Advice is the NLRB’s internal think tank where, among other things, prepares and analyzes requests for injunctive relief under Section 10(j) and ponders complex or novel legal issues.  In situations where there is no precedent Advice fashions the legal strategy to push forward with the concepts.  The mandatory submissions list contained in GC Memorandum 11-11 contains many cases that have been on the list for years.  For example, Beck issues (evaluating the how unions spend dues money- these cases have been submitted to Advice since the early 1990s), injunction matters and cases where the Region seeks to overturn NLRB precedent.

GC Memorandum 11-11, however, is noteworthy because the Acting General Counsel appears to be expanding his efforts to push for remedies that will assist unions in organizing and first contract situations. The following are representative of these efforts:

  • Extraordinary remedies in organizing situations.  The  Acting General Counsel submits to Advice the so-called “nip in the bud” cases where the Region determines that an employer’s unlawful response to an organizing drive is serious enough to warrant an  extraordinary remedy to balance the scales.  The Regions are instructed to submit to Advice cases “where the following remedies might be appropriate (1) access to employer electronic communications systems, (2) access to nonwork areas, and (3) equal time to respond to captive audience speeches.”  The submission expressly cites the reason as cases covered in an earlier GC Memorandum, GC Memorandum 11-01 (December 20, 2010).pdf (Effective remedies in organizing).  The remedies of “access to nonwork areas” and “equal time to respond to captive audience speeches” are mentioned in the prior memorandum, but only in a footnote; they were not the main focus.  The submission of these cases to Advice represents a broader effort to identify and pursue cases where such extraordinary remedies could be sought.
  • First contract remedies.  These are cases where the union gains bargaining rights but fails to achieve a first contract due to unlawful activities.  In the submission, Advice is to consider whether “whether reimbursement of bargaining expenses or litigation expenses might be appropriate.”  This is a reiteration of Acting General Counsel’s earlier GC Memorandum 11-06 (February 18, 2011).pdf, where reimbursement was discussed, along with “extension of the certification year” and requiring employers to “bargain on a schedule.” 
  • Cases involving Section 7 rights of employees to use e-mail.  Here, cases involving the NLRB’s decision in Register-Guard, 351 NLRB 1110 (2007).pdf where the Board held an employer “may lawfully bar employees’ nonwork related use of its e-mail system, unless [the employer] acts in a manner that discriminates against Section 7 activity.”  Id. at 1116.  Cases the NLRB might find suitable for overturning Register-Guard would be identified as part of the submission to Advice.

The submission of these types of cases, though seemingly innocuous, can have but one practical effect:  employers responding to organizing or bargaining first contracts will see a rise in unfair labor practice charges as unions respond to the Acting General Counsel’s greater receptivity to seeking truly extraordinary remedies.





Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.