The aggressive NLRB continues to forcefully tilt the field in favor of its Big Labor patrons. On Dec. 6th, the board reconsidered the Dana Corp. decision, dismissing a complaint that an employer and the UAW had violated the Act by respectively rendering and accepting unlawful support. Dissenting Board Member Hayes noted that the holding threatens “the establishment of collective-bargaining relationships based on self-interested union-employer agreements that preempt employee choice and input as to their representation and desired terms and conditions of employment.” The board continues to ratchet up the penalties for violations of the Act, which was one of the tenets of the proposed Employee Free Choice Act. In November, an employer in Deja Vu Mechanicals, 356 NLRB No. 37 (Nov. 24, 2010) settled ULP charges which included paying a particular employee several “make-whole” payments. However, language was included in the settlement that greatly magnified the penalties if the employer failed to make the payments. In essence this allows the Board to assume the original allegations against the employer are true, gives them permission to apply whatever remedies they want, and nullifies the original settlement and strips the company of any further recourse. The DOL has made clear that despite the outcome of the mid-term elections last month, it will continue, and actually ramp up, its anti-business agenda via regulation. Recent DOL documents secured by Americans for Limited Government reveal an aggressive DOL enforcement directive led by DOL Solicitor General Patricia Smith, including the following agenda items:
• “Identify a public liaison in each Regional Office” to “send stronger, clearer messages to the regulated community about DOL’s emphasis on litigation.” • “Focus on cases against employers in priority industries.” • “Litigate cases that cut across regions.” • “Engage in enterprise-wide enforcement,” e.g., send every DOL enforcement agency against a particular employer. • “Identify and pursue test cases.” This will be done to “challenge legal principles that impede worker protections; successful challenges will advance workers’ rights, as will successful enunciation of new interpretations.” • “Engage in greater use of injunctive relief.” The Department believes that fines are not enough. • “Focus DOL’s amicus program: We will focus our amicus program on those cases where DOL’s participation will provide the court with a unique voice on worker protection that the parties are not likely to articulate. • “Pursue at least one § 108(a)(2) injunctive action in federal district court.” (Refers to injunctions against coal mines where the Secretary “believes” that the operator has a pattern of violation of safety standards.) • “Imposing shorter deadlines for implementing remedial measures in conciliation agreements and consent decrees.” • “Deter [employers] through shaming.”
Yes – you read that correctly – the DOL now believes its job is to “shame” American businesses. In another tactic to increase the frequency of enforcement actions, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) has issued a directive discontinuing the agency’s Active Case Management (ACM) procedures. The ACM system provided an abbreviated desk audit process, and with its loss, employers can expect more thorough desk audits and on-site evaluations. The OFCCP claimed that the ACM process “eroded” its enforcement authority.
