Much has been written here and elsewhere about the card-check provision of the proposed Employee Free Choice Act. The mandatory interest arbitration provisions have gotten some attention as well (click HERE for a round-up). But there has been very little analysis of the changes to NLRA remedial measures if the EFCA is passed.

Section 4 of the EFCA would add the following language to the existing text of the National Labor Relations Act:

Injunction language:

Whenever it is charged— (A) that any employer— ‘(i) discharged or otherwise discriminated against an employee in violation of subsection (a)(3) of section 8; (ii) threatened to discharge or to otherwise discriminate against an employee in violation of subsection (a)(1) of section 8; or (iii) engaged in any other unfair labor practice within the meaning of subsection (a)(1) that significantly interferes with, restrains, or coerces employees in the exercise of the rights guaranteed in section 7; while employees of that employer were seeking representation by a labor organization or during the period after a labor organization was recognized as a representative defined in section 9(a) until the first collective bargaining contract is entered into between the employer and the representative; or (B) that any person has engaged in an unfair labor practice within the meaning of subparagraph (A), (B) or (C) of section 8(b)(4), section 8(e), or section 8(b)(7); the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred.

Liquidated damages language:

That if the Board finds that an employer has discriminated against an employee in violation of subsection (a)(3) of section 8 while employees of the employer were seeking representation by a labor organization, or during the period after a labor organization was recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract was entered into between the employer and the representative, the Board in such order shall award the employee back pay and, in addition, 2 times that amount as liquidated damages.

Civil penalties language:

Any employer who willfully or repeatedly commits any unfair labor practice within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation. In determining the amount of any penalty under this section, the Board shall consider the gravity of the unfair labor practice and the impact of the unfair labor practice on the charging party, on other persons seeking to exercise rights guaranteed by this Act, or on the public interest.

Statements about the proposed remedial provisions by EFCA proponents have been brief and conclusory:

• Representative Miller, when introducing the EFCA in the House: "The penalty for illegal activity, including firing workers for engaging in protected activity, is so weak that it does little to deter law breakers."

• Senator Kennedy, when introducing the measure in the Senate: "The penalties are so minor that employers treat them as just another cost of doing business."

The only expert witness to discuss remedies during the Senate hearing was Professor Cynthia Estlund of New York University Law School, who simply asserted that:

EFCA’s enhanced enforcement provisions are designed to give some teeth to a law whose toothlessness has become an international embarassment.

The most extensive discussion at the House hearings came from Nancy Schiffer, AFL-CIO Associate General Counsel:

Part of the reason for workers’ fear and part of the reason employers violate the Act with impunity is that no effective remedies are imposed. And that they come months and years too late. What happens if an employer is prosecuted for illegally threatening workers that it will close or lay off workers if they vote to form a union? Or for illegally spying on workers’ who are supporting a union? Or illegally telling workers that they cannot talk about the union? After the case is investigated and evaluated, it is litigated in a hearing before an NLRB Administrative Law Judge, appealed to the National Labor Relations Board and enforced in federal court. Only then can the employer be required to take any remedial action whatsoever. It will be required to post a notice on a bulletin board saying that it will not violate the law again. A piece of paper stapled to the bulletin board. In one of my cases the notice the employer posted required three 11” x 14” sheets to list all of the violations it had committed. Yet during the time the notice was posted, the employer committed all of the same violations again. The employer is also subject to a cease-and-desist order, which is limited to the specific violation charged. If the initial violation is for illegally interrogating workers about their union support and then the employer subsequently illegally threatens to reduce wages if employees choose representation, this constitutes an entirely different circumstance under current Board practice and the process starts all over again: investigation, hearing, appeal, appeal. If employees at several facilities of a single employer are organizing, violations at one worksite almost never produce an order not to commit those same violations at the other worksites.

No mention of the remedial provisions was made by Former NLRB Member Charles Cohen during his House testimony or by Former NLRB Chairman and Member Peter Hurtgen during his Senate testimony (though Mr. Hurtgen reportedly stated after the Senate Hearing that “ I oppose section 4 and I believe present Board remedies are adequate or could be without an amendment to the Act”).

There was, by our count, only one reference to NLRB remedies during the House floor debate.

In an early EFCA Updates article entitled, Current Law Provides Adequate "Consequences", we noted that there is already a provision for injunctions in the NLRA, that mechanisms for civil penalties already exist, and that, although there are no opportunities for civil penalties, there does exist an even stronger deterrent for employer unfair labor practices during organizing efforts:

In addition to the traditional remedies provided for in the statue, there are a number of rather serious consequences that a recalcitrant employer can face. Specifically:

• Where an employer’s unlawful actions have undermined the union's majority and made a fair election an unlikely possibility, the Board has the authority to order the employer to recognize and bargain with the union even where there has been no secret ballot election or where the union has lost an election. This authority was upheld in the U.S. Supreme Court’s 1969 decision in NLRB v. Gissel Packing Co.
• Section 10(j) of the National Labor Relations Act gives the National Labor Relations Board the authority to seek petition any U.S. district court for “such temporary relief or restraining order as it deems just and proper.” This can include the immediate reinstatement of a discharged union supporter while unfair labor practice proceedings are pending.
• Where a party refuses to comply with a Circuit Court’s order enforcing an NLRB decision, the NLRB’s Contempt Litigation and Compliance Branch can seek civil penalties, criminal sanctions, and extraordinary injunctive relief. (See NLRB v. Local 3, International Brotherhood of Electrical Workers )

The September 21, 2006 case of Evergreen America Corp. illustrates the application of the first of these measures. In that case, the Board found that the Union possessed signed cards from 62 of 115 bargaining unit employees, yet lost the election by a vote of 61 to 52. Even though there were no allegations that the employer had discharged union supporters, the Board held that it had engaged in unlawful activity that undermined the employees’ free choice. For example:

• Approximately 27 employees received threats of job loss and plant closure;
• 13 employees were unlawfully instructed not to attend union meetings, not to read the Union’s literature and to throw the material away;
• 9 employees were unlawfully interrogated
• 7 employees were subjected to the impression that their union activities were under surveillance.
• On 23 occasions, managers made express or implied promises to remedy solicited grievances;
• The company granted unprecedented and excessive across-the-board wage increases to bargaining unit employees;
• Managers manipulated the promotion process in order to promote more unit employees than in past years; and
• The company made other workplace changes designed to undermine union support, including liberalizing the attendance policy, expanding its casual dress policy, improving its sick leave policy, lowering the age for early retirement eligibility, and and awarding employees $400 Christmas gift certificates.

Far from being “without consequence,” the Board ordered the employer to recognize the union on the basis of the card majority, noting:

[S]imply requiring the Respondent to refrain from unlawful conduct will neither eradicate the lingering effect of the violations it committed nor deter their recurrence. Rather, we find that the employees’ representational desires, expressed through authorization cards, would be better protected by a bargaining order than by traditional or special remedies that the Respondent asserts were not considered by the judge. Accordingly, because we conclude that it is unlikely that a fair rerun election can be held because of the lasting effects of the Respondent’s violations, we affirm the judge’s finding that a Gissel bargaining order is appropriate.

Granted, the Board doesn’t seek those extraordinary remedies very often.  And no one but the most ardent union buster would dispute that serious violations do sometimes occur and that traditional remedies are sometime insufficient to address those violations.  So, I decided to ask a veteran Board Agent, who would never be fairly characterized as pro-management, why the agency didn’t use those weapons more often against the types of egregious conduct we’ve been hearing about in Congressional testimony. His response? “We don’t need new remedies to go after the serious violators. We need Congress to give us enough funding to use the tools we already have.”

Yes, Mr. Board Agent, we agree.  But wouldn't that take all the fun out of the grandstanding currently being done by labor and it's Congressional supporters?