Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here & here to find prior posts.
In GC Memo 18-02, the new General Counsel announced that his office will try and “remedy” the approach to remedies taken during the Obama presidency. The GC may seek to provide the Board with “alternative analysis” in two Obama Board decisions and has rescinded several initiatives of the prior GC.
Approach to Settlements. Effectively immediately, the GC has reversed course on two issues related to settlements. He has rescinded Memorandum GC 13-02, which allowed front pay to be part of Board settlements. Previously, front pay could only be included in “non-Board” side letters. Perhaps more importantly, he put an end to the requirement set forth in Memorandum GC 11-04, which required the inclusion of certain default language in all informal settlement agreements and all compliance settlement agreements. That change should allow charged parties to reach reasonable settlements more easily.
Interim Employment Expenses. The first Obama Board decision addressed by the GC concerns the controversial Board’s backpay formula set forth in King Soopers, 364 NLRB No. 93 (2016). Previously, those who were unable to find interim employment received no reimbursement for their reasonable search-for-work and interim expenses. The Obama Board found that this was “inadequate to fulfill its fundamental charge to make victims whole following an unlawful termination.” As such, King Soopers held that the Board would compensate employees for reasonable search-for-work and interim employment expenses, even when interim earnings were nonexistent or less than those expenses.
Recoupment of Union Dues. The GC also highlighted the approach to union dues set forth in Alamo Rent-a-Car, 362 NLRB No. 135 (2015). In that case, the Obama Board held that an employer found guilty of violating the Act must pay dues owed the union from its own funds, without recouping the amount from its employees and with interest. This represented a departure from Board precedent, which had allowed employers to recoup from employees any dues that the employer had to pay the union.
Backpay for Salts. Finally, the new GC rescinded an initiative of the prior GC related to salts. During the Obama presidency, the prior GC had an initiative to overturn the burden of proof set forth in Oil Capital 349 NLRB 1348 (2007), and require employers to demonstrate that a salt would not have remained with the employer for the duration of the claimed backpay period. In Oil Capital, which the GC will not seek to overturn, the Board eliminated the presumption of “indefinite employment” and required that the alleged discriminatee present affirmative evidence that he or she would have worked for the employer for the backpay period claimed.