As we discussed in our recent report on National Labor Relations Board General Counsel (“GC”) Jennifer Abruzzo’s August 12th agenda for the direction of NLRB case law, employers should be ready for an aggressive expansion of remedies that the NLRB will seek. In the short time since the GC’s memorandum was published, NLRB Chairman McFerran expressly stated her willingness to explore new remedies for unfair labor practice violations.
If there were any doubts about how quickly the GC would act to expand penalties that employers may face, they were put to rest with the issuance of the GC’s newest memorandum published on September 8, 2021 (NLRB GC Memo 21-06). GC Abruzzo instructs NLRB regions to immediately seek expanded remedies in a wide array of cases. The memorandum directs regions to take aggressive positions on remedies to prepare cases for NLRB consideration regarding expansion of the scope of damages.
The GC instructs regions to seek the following types of remedies that would significantly increase the risks faced in any alleged unfair labor practice (“ULP”) litigation:
- Consequential damages, front pay, and for discharged employees. The GC previously advised regions to refer cases involving these potential remedies to the Division of Advice. Now, the GC has instructed regions to affirmatively seek these expanded remedies in discharge cases.
- Expanded union access. In cases involving employer ULPs during union organizing, the GC requires remedies such as providing unions with employee contact information and allowing unions to hold “captive audience” employee meetings on company property.
- Reimbursement of union organizing costs. New cases may seek to require employers pay business agent wages, attorney fees, travel costs, and other costs unions incur where an employer’s objectionable conduct causes an election to be re-run.
- Damages based on speculative contract terms. In refusal to bargain cases, the GC is considering an extraordinary remedy enabling the Board to premise a monetary damages on what the employer speculatively would have agreed to in bargaining, had it bargained in good faith. As this is the GC’s second explicit reference to this novel theory in the matter of weeks, this will likely by a significant objective for the GC and the Board.
- Public publishing of remedial notices in newspapers, websites, and on social media. Posting notices regarding resolution of ULP charges has long been standard practice. Now, the GC is encouraging mandates to publish these notices in local newspapers, company websites, or social media pages, reaching audiences far beyond those employees who may have been impacted by any alleged violation.
- Hiring individuals selected by the union. In the event an unlawfully discharged employee chooses not to return to work, the GC wants regions to require the company hire a qualified applicant selected by the union.
- Regional oversight of bargaining. Bad faith bargaining claims should be remedied by (among other things)
- a rigorous bargaining schedule imposed by the region,
- employer-submitted progress reports,
- compelled mediation,
- managerial training,
- reinstatement of unlawfully withdrawn bargaining proposals,
- reimbursement of a union’s negotiation expenses, and
- regions should seek a ban on challenges to a union’s majority status (such as decertification or withdrawal of recognition) for at least one year.
- Increased remedies and protections for undocumented workers. In cases involving undocumented workers, regions may seek U or T visas or deferred immigration actions to permit those workers to remain employed, and employer sponsorship for work authorizations to remain in the United States. Regions could also seek additional make whole damages, such as the establishment of a fund that employers must pay to ensure employers are not “unjustly enriched” due to the status of undocumented workers.
The GC also instructs regions to secure visits for inspections and discovery rights to monitor compliance, longer posting periods, NLRA training for all employees, broader cease and desist orders, and public reading of notices by management officials to all employees. The GC promised that she will issue another memorandum on settlements that could modify litigation strategies as well.
Over the next four years, it appears inevitable that the NLRB will expand its view of what constitutes an unfair labor practice and simultaneously increase penalties on employers based on those new precedents. It is important for employers to carefully assess their labor relations strategies.