On September 8, 2021, National Labor Relations Board ("NLRB") General Counsel Jennifer Abruzzo created quite a stir when she issued a memorandum (GC 21-06) ("Memo") bearing the subject line "Seeking Full Remedies." The Memo sets forth remedies for the NLRB's 26 regional offices to pursue victims of unlawful employer conduct that violates the National Labor Relations Act (the "Act"). The Memo was the latest development signaling Abruzzo's (and the NLRB's) plans to modify labor law precedent.
In her Memo, Abruzzo was quick to note "the Board possesses broad discretionary authority. to fashion just remedies to fit the circumstances of each case it confronts." Acting within that authority, she urged the NLRB Regions to request the NLRB to employ the "full panoply" of remedies available for victims of unlawful conduct. At present, NLRB remedies for unfair labor practices cases include monetary remedies (including backpay for the period of unemployment, as well as payment of dues, fines, or other costs) and/or employee reinstatement to achieve the status quo without employer penalty provisions.
The Memo addresses some new and some revised remedies with an emphasis on cases involving unlawful firings, and a goal to restore "discriminatees" as near as possible to the status quo. To that end, the Memo instructs the Regions to seek compensation for (i) consequential damages, (ii) front pay, and (iii) liquidated backpay. In addition, as to those who were subjected to unlawful firings as a result of being undocumented, the Memo instructs the Regions to seek (i) compensation for work performed under unlawfully imposed terms (i.e. work performed under unlawfully reduced pay rate), (ii) employer sponsorship of work authorizations, and (iii) other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers.
While cases involving unlawful conduct that occurs during a union organizing drive are often more difficult to address, many remedies are still available. Abruzzo detailed a non-exhaustive list of remedies and appropriate examples of same including (i) union access to employees and contact information, (ii) reimbursement of organizational costs, and (iii) reading of the remedial Notice to Employees and Explanation of Rights by a principal or board agent to employees, supervisors, and managers, with union representatives present.
In cases involving unlawful refusals to bargain, General Counsel Abruzzo has made it evident that she is considering remedies that would compensate employees for losses they sustained due to an employer's failure to bargain. At present, she has also encouraged the Regions to seek broad remedies including (i) bargaining schedules, (ii) submission of progress reports to the Agency on the status of bargaining, (iii) reimbursement of collective-bargaining expenses, and (iv) broad cease-and-desist orders.
In addition, the Memo refers back to an earlier GC memo issued on August 12, 2021 (GC 21-04), addressing cases where an employer refuses to bargain with a union after the union has presented evidence that the majority of employees have signed union cards. That prior memo indicated that the GC was considering the issuance of Joy Silk Orders, which require employers to recognize and bargain with unions formed through a "card check" process, as opposed to a secret ballot union election.
This latest Memo directs Regions to actively seek Gissel Bargaining Orders whenever employers commit unfair labor practices leading up to secret ballot elections. A Gissel Bargaining Order bypasses the secret ballot election and requires immediate negotiation of the first collective bargaining agreement. The General Counsel has made clear that she seeks to expand the availability of "card check," to the general benefit of unions and employees seeking to form unions.
In closing, the General Counsel added that she plans to issue another memorandum soon that will set forth the types of remedies that Regions should incorporate in settlement agreements. The tenor of General Counsel Abruzzo's memorandum makes clear that employers should expect an expansion of viable remedies available to employees and unions in the context of employment and labor litigation.
In addition to the NLRB's recent activity, Congress has also signaled its intent to "up the stakes" in labor and employment law enforcement. On September 8, 2021, Congressional Democrats released the employment provisions of the Build Back Better Act, a planned $3.5 trillion fiscal 2022 spending bill. The bill proposes hefty fines on "union busters," increasing penalties for certain wage violations under the Fair Labor Standards Act, and the amendment of the NLRA to include, among other things, prohibiting employers from permanently replacing striking workers or making workers forego class action lawsuits.
Both Congress and the NLRB's actions indicate paradigm shift towards an employee and union-friendly labor relations landscape. Consequently, now is a good time for employers to work closely with their counsel to maintain compliance with all applicable labor and employment rules and regulations and avoid costly litigation and penalties that may be on the way soon.
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