BNA Daily Labor Report, October 13, 2010, Wednesday

BNA Daily Labor Report

October 13, 2010, Wednesday

BNA Daily Labor Report

Expedited Process Set Out in Memo Could Be Expanded

NEW YORK—The concept behind the expedited process for obtaining remedies for firings during union organizing campaigns set out in his recent National Labor Relations Board memorandum could be expanded to other areas of Section 10(j) injunctive relief, Acting NLRB General Counsel Lafe Solomon suggested Oct. 13.

Speaking at a Cornell University School of Industrial and Labor Relations program, Solomon said that the goal of the memorandum, which he issued to regional offices Sept. 30, is “real-time reinstatement.” The memorandum called for priority action and a speedy remedy in every meritorious unfair labor practice case alleging discriminatory termination during a union organizing effort (189 DLR A-13, 9/30/10).

“There really is no doubt among anybody working at the board that [protection against retaliation] is the very essence of the [National Labor Relations] Act,” Solomon said. “Firing destroys both the organizing campaign and—to me, more important—the employee's life.” Board staff will “fast-track these cases from beginning to end,” he said.

Asked if the expedited approach might be applied to 10(j) or 10(l) cases not involving retaliation charges, Solomon said that if the effort is successful, he hopes it can be expanded to other 10(j) cases. Section 10(j) of the NLRA empowers the NLRB to petition a federal district court for an injunction to temporarily prevent unfair labor practices by employers or unions and to restore the status quo, pending full review of the case by the board.

The 10(l) cases, Solomon suggested, would not lend themselves to the same approach. Section 10(l) of the NLRA requires the board to seek a temporary federal court injunction against certain forms of union misconduct, principally involving “secondary boycotts” and “recognitional picketing.”

The board will keep statistics to see if the new approach really works, Solomon said.

For the genesis of the memo, Solomon gave credit to Samuel Estreicher, who wrote an article as a New York University law professor setting out areas for administrative reform at the board, short of amending the act (106 DLR C-1, 6/5/09).

Time Lag ‘Too Long.’

Estreicher's 2004-08 statistics showed an average of 334 days between the filing of a charge to the filing of court papers seeking an injunction, he said. “That is much too long,” Solomon said, “so we've redesigned the process to try to remove the obstacles along the way.”

The presentation was Solomon's first speech since his appointment as acting general counsel in June (118 DLR A-14, 6/22/10).

In a discussion of the impact of the U.S. Supreme Court's decision in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 188 LRRM 2833 (2010), rejecting the authority of the board to issue decisions with only two members (116 DLR AA-1, 6/18/10), Solomon reported that three-member panels of the board have redecided on remand 70 of the 96 two-member cases pending before circuit courts when the Supreme Court issued its decision (126 DLR AA-1, 7/2/10).

Of those, 56 are back in court, Solomon said. Some have been settled, and others are “yet to come,” he said. The three-member panels include Members Wilma B. Liebman (D) and Peter C. Schaumber (R)—who made up the two-member board—plus a randomly assigned third member.

The board expects “all kinds of attacks” questioning the propriety of having Liebman and Schaumber ruling on the redecided cases at all, Solomon said.

In four or five pending contempt cases, Solomon said, the board is taking the position that the contempt case is valid in the circuit courts even if the underlying two-member board decision is not.

Turning to recent board decisions to reconsider two sets of cases that question whether a union's support among employees can be challenged (168 DLR A-9, 8/31/10), Solomon said that the general counsel's office would not be filing briefs in the cases. The request for briefs, due Nov. 1, seeks “empirical data from the real world” to help guide the board, and the general counsel's office lacks any of that kind of empirical knowledge, he suggested.

Conflict on Deferral to Arbitration

On another subject, Solomon said that board staff have been grappling with “what to do next” to resolve a long-standing conflict with the U.S. Court of Appeals for the District of Columbia Circuit on board policy on deferring to arbitration awards (213 DLR A-3, 11/6/09).

While the board has reserved the right not to defer to arbitration awards under certain specific circumstances, set out in what are known as the Spielberg/Olin standards, the D.C. circuit took the position that a collective bargaining contract constitutes an implied waiver of the employee's right to seek board review, Solomon said.

Although it has proved difficult to resolve the “complicated” issues concerning deferral, the board staff hopes to develop new proposed rules that would be announced publicly and considered by the board, he reported.

Annually, the board defers to arbitration in all but about two dozen cases out of 2,000, Solomon said. “It's a real problem, but only a real problem in a small number of cases,” he said.
On the issue of mitigation of damages, Solomon said that board staff have been asked to review the whole back pay process, “to go back to first principles and come up with a system that is fair.”

Although he acknowledged the complexity of mitigation issues, he suggested that it is insensitive to the impact a dismissal can have on an employee's life “to sit in our ivory tower and say you have to pound the pavement for two weeks and forever thereafter.”

Under current board law, illegally fired employees have a duty to mitigate their damages by looking for and performing other comparable work, and the mitigation earnings are subtracted from the back pay owed.

Management, Union Attorney Responses Vary

Discussing Solomon's presentation, management attorney Stephen Ploscowe of the New York law firm Fox Rothschild questioned the assumption behind the expedited process for seeking injunctions in retaliatory discharge cases.

“My concern is the board's assumption that there has been an unlawful discharge,” Ploscowe said. While some cases may have clear evidence on the record, others rely “on a board agent reporting hearsay to someone higher up in the region, and the region makes a recommendation to the board,” he said.

“It's a little harsh, frankly, in many cases to go to a 10(j) injunction,” he continued, adding that an expedited administrative law hearing would be preferable to determine the facts. “Frequently, there is too much of an assumption that there has been unlawful activity, and that is not always so.”

Similarly, on mitigation of damages, Ploscowe maintained that the facts may not support the employee's case. He cited an instance in which an employer client had been denied mitigation even though the employee had been offered another, identical position at a nearby location with the same pay.

Susan Davis, a union attorney with the New York law firm Cohen, Weiss and Simon, welcomed Solomon's memo, commending the “thought, creativity, and attention” given to the issue. She called for a broader review of the 10(j) injunction process and “the entire remedial scheme” under the act.

“I think there is a general, if grudging, consensus that penalties under this act are so weak that it is a rational economic choice for the employer to take to violate the law,” she said.

Davis sought to contrast the total of 112 Section 10(j) injunctions during the term of the most recent general counsel, Ronald Meisburg, with the thousands of “meritorious cases” in that period. “There is an enormous discrepancy between what is happening on the ground and what is happening in Washington in terms of enforcing the law,” she said.