National Labor Relations Board General Counsel (GC) Jennifer Abruzzo recently issued a hard-hitting Memorandum urging the Board's regional offices to consider closely the full scope of aggressive remedies she deems available to them for issuance against employers. This Memorandum effectively directs the regional offices to adopt the GC's position that the Board possesses "broad discretionary authority under Section 10(c)" of the National Labor Relations Act ("NLRA" or "Act") to seek a "full panoply" of remedies available against employers found to commit unfair labor practices.
Less than two months following her U.S. Senate confirmation, GC Abruzzo has thrown down a very significant gauntlet. This Memorandum, despite its framing as simply a re-examining of previously available remedial measures, represents a serious change in the remedial nature of federal labor law.
Abruzzo issued her Memorandum at the same time that the balance of power on the Board shifted from Republican to Democratic control. At the end of August, Republican Board Member William Emanuel's term expired. He was succeeded by Democrat David Prouty, who previously served as general counsel to a large Service Employees International Union local. Prouty's confirmation followed that of Democrat Gwynne Wilcox, who similarly once served as associate general counsel to a different local of the same major union. As such, with Wilcox and Prouty now securely on the Board and able to join Chair Lauren McFerran (D), the Democrats now control the Board 3-2.
The common theme of the GC Memorandum is that the Board's remedial power (in Abruzzo's view) is seemingly unlimited. Indeed, a review of the illustrative list of remedies identified by GC Abruzzo as "appropriate" is telling. For example, the Memorandum urges the regions to "explore a new make-whole remedy" of "consequential damages" against employers that are found to violate the Act. It articulates the type of punitive actions that should be considered in a variety of situations, for example:
- Unlawful firings: front pay, liquidated backpay, compensation for credit card late fees incurred for the loss of a home or car that an employee purportedly suffers as a result of an unlawful discharge, and employer sponsorship of work authorizations for the firing of undocumented workers;
- Unlawful conduct during organizing campaign: increased union access to employee contact information and employer facilities to address employees, reimbursement of organizational costs, publication of notice of rights in the newspaper and other public media forums, including social media, visitorial and subpoena power to the Board to monitor compliance, training of employees on their right to organize, allowing the union to choose who the employer hires where a discharged discriminatee is unable to return to work, and cease and desist orders; and
- Unlawful failure to bargain: make-whole compensatory remedies for losses sustained by employees (which the Board has previously declined to order), bargaining schedules (e.g., requiring an employer to bargain not less than twice a week, at least six hours per session until an agreement or impasse is reached), submission of periodic detailed progress reports to the Board, reinstatement of proposals that the Board finds to have been unlawfully withdrawn, reimbursement of collective bargaining expenses, the reinstatement of a one-year contract bar, and cease and desist orders.
Abruzzo cites to Board precedent throughout her Memorandum that suggests the GC's intention to routinize extraordinary remedies, regardless of the egregiousness of the conduct. For example, Abruzzo cites Texas Super Foods1 for the proposition that organizing costs should routinely be considered in recognition unfair labor practice findings. In Texas Super Foods, however, the Board awarded organizing costs premised upon the unusual circumstance that the employer's flagrant, repeated misconduct necessitated a third re-run election. Similarly, the GC cites J.P. Stevens & Co., Inc.,2 for the proposition that the regions should, where "appropriate," seek an order requiring employers that acted unlawfully during an organizing campaign to give NLRB-approved training to employees and supervisors on employee rights and/or compliance with the Board's order. In J.P. Stevens, the employer made "unrelenting" efforts for years "to destroy the Union through persistent violations of the law, Board orders, court decrees, and contempt citations... few, if any, who are subject to regulation under this Act, have achieved the excesses of J. P. Stevens." Even under these circumstances, the Board did not impose formal training, but instead ordered the employer to, among other things, issue written instructions to its supervisors to comply with the notice. The clear tenor of the Memorandum is that, in the context of NLRA remedies, the GC is advocating for severe penalties against employers and indicating that such remedies should become the established norm. Notably, the Memorandum makes no mention of stepping up remedies against unions specifically that commit unfair labor practices, such as inducing forbidden strikes or threatening employees for not supporting the union.
The Memorandum is also in accord with Abruzzo's recent proclamations that she intends to reverse the Board's position in a number of key policy areas and aggressively seek 10(j) injunctions against employers, made clear in earlier Memorandums issued on August 12 and August 19. There, the GC not only announced her intent to overturn many of the decisions issued under the Trump-era Board relating to workplace policies and handbooks, the legal standard for determining employment status, and the inclusion of confidentiality and non-disparagement clauses in private settlement agreements, but also stated her intent to chip away at longstanding Board policy relating to card check recognition, the duty to bargain, the right to strike, and Section 7 rights.
The GC's September 8 Memorandum makes abundantly clear that her enforcement strategy represents a sharp departure from the gradual, Board-action approach of the Trump-era Board, to an approach that is immediate and pro-labor. Therefore, employers should be cautioned that remedies issued in response to findings of an unfair labor practice may be severe, and unlike anything we have ever seen before. Employers should view these initial Memorandums as merely "Act I," as GC Abruzzo explains she will issue yet another directive to the regional offices very soon regarding remedies to be incorporated in Board settlement agreements.
As well, employers must recognize that, in challenging the over-reaching remedies issued at the regional level, the Board in Washington, D.C. may not be an interested ear. Instead, we anticipate that many employers may need to test the appeal waters at the United States Courts of Appeal more often than was necessary in the past.
1 303 NLRB 209, 209 (1991).
2 244 NLRB 407, 408 (1979).
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