Monday, October 25, 2010

NLRB Continues To Implement EFCA Unilaterally

The National Labor Relations Board is working overtime to implement proposed provisions of the Employee Free Choice Act which the Obama Administration could not force Congress to pass.

As per a blog sent last week, expectations are for a dramatically-shortened election period which will put employers at a huge disadvantage in NLRB-supervised elections where employees decide whether or not to embrace the representation (as well as the costs and risks) of a labor union.

In the interim, the NLRB has issued two important decisions that will act to chill an employers' decisions to terminate employment and that will chill their freedom of expression on union issues:

1. Back pay. For the past 50+ years, when the NLRB ordered reinstatement and back pay to an employee, the interest was calculated on a simple interest basis. Now, the Board has decided that is not punitive enough and that in the future back pay will be based on a "compounded daily" formula.

2. Notices. The NLRB has compelled employers to post notices in the workplace in the past for past infractions. Now, they have granted themselves the power to require employers to put such notices not only on bulletin boards but on company intranet sites, and to require employers to e-mail such notices to their employees.

The impact of these decisions can only be speculated, but here's one speculation . . . First, some employers will be more reticent to terminate, even when there is just cause, for fear that this NLRB will judge their guilt or innocence and that if found guilty, the price of poker has just gone up. Second, the ignominy of having to post an NLRB notice on a company's intranet will cause PR-sensitive companies to limit campaign rhetoric for fear they will be forced to submit to a government-imposed humiliating display on their own in-house Internet site.

More to come . . .


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