In soccer, as you MLS and Premier League fans know, a red card is issued for particularly egregious fouls. If you have ever wondered how the NLRB responds to egregious instances of employer misconduct, wonder no longer. In a recent case, the NLRB issued an equivalent of a “red card” to an employer who, according to the NLRB, engaged in a “10 year history of [NLRA] violations” before both the NLRB and federal courts.
The violations involved refusals to bargain, unilateral changes in working conditions, and disciplinary actions (including terminations) because of union activities. I decided not to catalogue the violations the NLRB found here, as it would unduly lengthen this post. A link to the case is here (pdf), and the curious reader can peruse the case at their leisure.
The interesting part of the case is the nature of the remedies that the NLRB ordered or considered. A laundry list of them follows, along with references to the page number in the case where they are discussed for those interested in reading more:
- Reimbursing the union and the government for the costs of litigating the unfair labor practice case, including the initial investigation of it all the way through the litigation before the NLRB (p. 3);
- Reimbursing the union its bargaining expenses, including salaries and expenses of union officials negotiating with the employer (p. 5);
- Enhanced notice posting obligations, including a three year term (usually, the NLRB requires posting of the notice for 60 days), a posting of the decision, and the posting of a special “Explanation of Rights” document tailored to the employer’s violations (p. 5);
- Publication of the NLRB’s notice, and the Explanation of Rights form, at the employer’s expense, in two different local publications chosen by the government twice a week for eight weeks (p. 7);
- Requiring an officer of the employer or an NLRB agent to read to all employees, with the employer’s supervisors and managers also in attendance, the notice and Explanation of Rights (p. 8);
- Rescission of the unilateral changes and making employees whole for lost pay (p. 8);
- Granting union representatives access to the employer’s property consistent with the past practices between the employer and the union (p. 9); and
- Ordering the employer to permit an NLRB agent to visit the employer’s property for the next 3 years to determine the employer’s compliance with the NLRB’s order (p. 9).
Significantly, the NLRB discussed (pp. 10-11), but ultimately did not award, front pay to the employee whom the employer (twice) fired for reasons the NLRB held were unlawful. The NLRB majority concluded that it had the statutory authority to award front pay, even though the statute doesn’t mention such authority and the NLRB has historically only awarded back pay to employees impacted by employer unfair labor practices. The NLRB majority’s decision sends a clear signal to unions and the General Counsel to request this remedy in future discharge cases (neither had done so in this case, thus causing the NLRB to hold back from actually awarding front pay).
Members Johnson (R) and Miscimarra (R) submitted separate dissents to parts of the majority’s decision. While both concurred that the violations were egregious and warranted remedies beyond the normal ones, neither of them would have gone as far as the majority. This was true not only on the issue of front pay, but also on the litigation expenses and some of the other remedies.
For the labor professional, the most significant development from this case is clearly the NLRB’s discussion of front pay as a remedy. Even if the NLRB ultimately holds that front pay is recoverable, expect a long-term fight in the federal courts over the propriety of the NLRB’s assessment of its remedial authority.