Jennifer Abruzzo, the General Counsel for the National Labor Relations Board (“NLRB”), recently issued a memorandum advising Regional Offices of the NLRB to seek a variety of remedies to ensure that victims of unlawful conduct under the National Labor Relations Act (“NLRA”) are made whole for losses they have suffered.
In this memorandum, General Counsel Abruzzo stated that “The Board possesses broad discretionary authority to fashion remedies to fit the circumstances of each case that comes before it.” In accordance with this authority General Counsel Abruzzo went on to state: “It is so important that we utilize every possible tool we have to ensure that those wronged by unlawful conduct obtain true justice. To do this, we need to examine all of the ways that workers have been hurt by unfair labor practices and seek remedies that will fully address them.”
Currently, typical penalties for violations of the NLRA include:
- Requiring an employer to post a notice to employees acknowledging that a violation has occurred and promising not to break the law again.
- Providing employees who have been unlawful terminated with “reinstatement” and “back-pay.”
- In egregious cases, requiring an employer to recognize and bargain with a Union.
General Counsel Abruzzo’s memorandum, however, increases the potential consequences for breaking the law. For example, the memorandum instructs Regional Offices to seek the following types of remedies:
- Consequential Damages to make employees whole for economic losses (apart from the loss of pay or benefits) suffered as a direct and foreseeable result of an employer’s unfair labor practice.
- Examples include compensation for health care expenses that an employee may incur as a result of an unlawful termination of health insurance, or compensation for credit card late fees incurred or for loss of a home or a car that an employee suffers as a result of an unlawful discharge.
- Reimbursement of organizational costs (e.g., requiring an employer to pay for organizational costs that a union incurs in a re-run election because the employer has engaged in unlawful conduct sufficiently egregious as to cause the results of the prior election to be set aside).
- Instatement of a qualified applicant of the union’s choice in the event a discharged discriminatee is unable to return to work.
- Mandated bargaining schedules (e.g., requiring a respondent to bargain not less than twice a week, at least six hours per session, until an agreement or a bona fide impasse is reached).
- Reimbursement of collective-bargaining expenses (e.g., requiring a respondent to reimburse an opposing bargaining party for negotiation expenses incurred during the entire period in which it fails to bargain in good faith).
In addition to the remedies contemplated by General Counsel Abruzzo, it is also worth noting that the current $3.5 trillion infrastructure bill that is being drafted in congress reportedly includes an amendment to the NLRA which would allow the NLRB to begin to impose fines on employers up to $50,000 for violations of the NLRA.
It is important to note that at this time, the enhanced remedies articulated by General Counsel Abruzzo are not currently law. However, it is clear that General Counsel Abruzzo will be seeking these remedies in future cases and with the NLRB recently shifting back to control by the Democratic party, it is likely that at least some of these remedies will be adopted. Similarly, the fines contemplated in the infrastructure bill are a long way from final.
We will keep a close eye on all of these potential changes in remedies and will update this blog regularly as the status of labor law changes.