In a memorandum (pdf) sent to all NLRB regional offices, Acting General Counsel Lafe Solomon not only encourages the use of additional remedies in certain cases involving first-contract bargaining, but permits these offices to bypass the Division of Advice in doing so. Specifically, the memorandum directs regional officers to use their discretion in seeking notice-reading, certification-year-extension, and bargaining-schedule remedies in specific instances outlined in the memorandum involving evidence of unfair labor practices. In addition, the memo encourages regions to seek reimbursement of bargaining and/or litigation expenses, but directs them to first submit these cases to the Division of Advice in order to “assure consistent analysis and application” of these remedies, since the agency claims it has not had much experience involving such remedies for initial contract bargaining cases.

According to the memorandum, regions are authorized to seek the remedy of notice reading, which requires a management official or NLRB agent to read the remedial notice to assembled employees, without submitting the case to Advice when “the employer’s unlawful contact at or away from the table had the effect of undermining union support among employees.” Such instances include:

first-contract bargaining cases where an employer refused to bargain with the union; where an employer rejected all of the union’s proposed bargaining dates; where an employer made unilateral changes and refused to provide information; where an employer engaged in surface bargaining; where an employer engaged in bad faith bargaining and discriminated against a steward and union members; and where an employer failed to execute an agreed-upon contract, dealt directly with unit employees, withdrew recognition, and blamed unilateral changes regarding employee bonuses on the union.

As for the remedy of extending the certification year, regional officers have been able to seek such extensions “when part or all of the certification year is lost due to the employer’s bad faith or surface bargaining, dilatory tactics, and/or blanket refusals to bargain.” Under the new GC directive, officers are permitted to seek such extensions of between 6 and 12 months without first submitting the case to the Division of Advice in first-contract bargaining cases.

Finally, the memorandum claims that the remedy of specific bargaining schedules “can effectively remedy the delay aspects of an employer’s bad faith bargaining.” To that end, the GC gives the regional offices the discretion “to seek the 24-hour-per-month/6-hour-per session bargaining schedule without submitting the matter to Advice” when, during a first-contract bargaining matter, an employer engages “in dilatory tactics, such as delays responding to requests for bargaining dates, cancellation of scheduled bargaining sessions, refusals to provide information that impede bargaining, and refusing to meet for bargaining at regular intervals.”

The issuance of this GC memorandum is the latest move in a recent trend targeting alleged employer misconduct during the bargaining and ULP settlement process. In December 2010, the GC issued a separate memorandum that directed all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. A few months earlier, the agency put into place a program designed to streamline and expedite the process of seeking preliminary “10(j)” injunctions from federal courts in cases involving employee discharges during union organizing campaigns. Earlier this year, yet another GC memorandum instructed regional directors to include in all informal and compliance settlement agreements certain default language. A few weeks later, the GC issued a memorandum that changes the Board’s arbitration deferral policy.

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