With a new General Counsel's Memorandum, the NLRB has
increased the autonomy of Regional Offices to seek remedies against Employers
in "first contract" charges. On February 18, 2011, Acting General Counsel Lafe
E. Solomon issued memorandum GC 11-06 to each of the Regional Offices of the
NLRB. The memo, which represents a shift from the NLRB's prior policy,
instructs the Regions that they no longer need to seek NLRB approval before
seeking certain remedies in unfair labor practice charges involving first
"First contract" refers to the period after a Union is certified, during which
the Union and the Employer are negotiating their first collective bargaining
agreement. The first contract period has long been a focus of the Board. In its
view, Unions are particularly vulnerable during this initial period and require
In the past, however, the Board had authorized Regional Offices to seek
additional remedies (beyond the traditional bargaining order) in first contract
cases only after getting prior approval from the NLRB's Division of Advice. In
this way, seasoned NLRB staff attorneys would evaluate the facts in each
charge, and determine what remedies, if any, might be appropriate. The process
normalized the Board's responses (among the Regional Offices) to first contract
charges, and provided an important check on over-zealous Regions. Under the new
memo, Regions may now skip this step.
As of now, Regions can seek the following additional remedies without prior
- Notice reading. The Region can seek to force the
Employer to post, and even read aloud to employees, a notice that informs
employees of the rights the Employer allegedly violated.
- Bargaining on a fixed schedule. The Region can seek to enforce a fixed
bargaining schedule. For instance, Employers may be required to bargain in
six-hour sessions, four times a month, until an agreement is reached.
- Certification year extensions. Under the statute, a newly-certified
Union may not be challenged or decertified during the initial "certification
year." The Region may now seek to extend this certification period, typically
for a full additional year (and no less than six months).
The Region may also seek to have the Employer reimburse
the Union for its bargaining and litigation expenses, or even seek immediate
injunctions against the Employer in federal court (though these remedies still
require prior approval from the General Counsel's Office).
The Region's ability to seek these remedies can be triggered by "first
contract" unfair labor charges involving certain types of allegations. These
may include allegations that the Employer:
- refused to bargain, or engaged in "surface" bargaining;
- rejected too many of the Union's proposed bargaining dates or otherwise
- refused to provide requested and relevant information;
- made unilateral changes to terms or conditions of employment;
- discriminated against Union members;
- dealt directly with employees (bypassing the Union);
- unlawfully subcontracted work; or
- similar allegations of discrimination or bad faith bargaining.
Employers in the "first
contract" stage should beware if any of these allegations are brought against
them. Although the available remedies might seem appropriate for legitimate
violations, Unions negotiating first contracts frequently bring offensive
charges with little foundation to gain bargaining leverage. That is, even if it
has little or no evidence, a Union may file an unfair labor practice charge
raising the above allegations simply to gain an advantage in the negotiations.
The Regions can now seek remedies based on such charges without any additional
The streamlining of these pro-Union remedies could have a significant impact on
Employers. The "first contract" period is a critical time, and the first CBA
between the Union and the Employer will establish the baseline for future
negotiations. By taking advantage of the charge process, and the Regions' new
autonomy, Unions can strengthen their position and severely limit the Employer's
flexibility during these crucial early stages.
For more information about this topic, please contact the authors or any
member of the Williams Mullen Labor & Employment Team.
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