The price of poker just went up for employers facing unfair labor practice charges before the National Labor Relations Board (NLRB, or Board). On October 24, 2014, the NLRB asserted that it had broad authority to order expanded remedial measures in response to acts the Board deemed to constitute “egregious and pervasive” violations of the National Labor Relations Act (NLRA, or the Act). The unprecedented remedies announced by the Board demonstrate that it is intent not only on aggressively enforcing the NLRA, as we have previously covered here and here, but also on making employers fear the potential consequences of violating the Act.
In HTH Corporation, 361 NLRB No. 65 (2014), the Board ordered the employer to reimburse both the NLRB General Counsel and the union for litigation expenses incurred over several years. Included in the litigation expenses charged to the employer are reasonable counsel fees, salaries, witness fees, transcript and record costs, printing costs, travel expenses, per diems, and other reasonable expenses. The Board also ordered reimbursement of the union’s bargaining expenses attributable to the employer’s unfair labor practices and of the cost to the union for restricting two union officials’ access to the employer’s facility.
In addition to footing the government’s and union’s litigation bills, the employer must also comply with unprecedented posting requirements. A typical unfair labor practice case remedy requires the employer to post a notice informing employees of their rights under the NLRA and stating that the employer will not violate those rights. The Board traditionally requires the notice to be posted for a period of 60 days. In HTH Corp., however, the Board ordered the employer to post the standard notice along with an Explanation of Rights—a document including employees’ core rights under the Act, with examples of unlawful employer conduct specifically relevant to the case—for a period of three continuous years. The Board also ordered the employer to provide all new hires during the three-year posting period with copies of the notice and the Explanation of Rights and to “publish the notice and Explanation of Rights in two local publications of broad circulation and local appeal twice a week for a period of 8 weeks.” The Board’s order provided that the NLRB will select the publications in which the notice and Explanation of Rights will appear.
Finally, the Board used the occasion to signal a new remedy available under the Act: front pay. Front pay is money awarded for a wronged employee’s lost compensation during the period between judgment and reinstatement, or in lieu of reinstatement. The Board has never before awarded front pay and did not do so in this case. Instead, the Board stated that it will wait to order front pay, and determine how front pay should be calculated, until the issue is fully briefed in a future case.
This decision highlights the Board’s increasingly aggressive pro-labor agenda. Notably, neither the union nor the General Counsel asked for the enhanced remedies awarded in this case, and the issue of front pay was not raised by any party to the proceedings. Instead, the Board relied on its “broad and discretionary” remedial powers to fashion remedies it believes will “effectuate the policies of the Act.” Though the employer in this case had an extensive history of violating the NLRA, the Board’s current trajectory indicates that it may not be long before it seeks to impose similar remedies in less egregious cases.
As a result of this decision, employers facing NLRB litigation must accept the potential for increased financial exposure, including front pay and orders to pay litigation expenses. Employers should also understand that, because the possibility of recovering litigation expenses now exists, unions have an increased incentive to file and litigate unfair labor practice charges. Consequently, it is more important than ever for employers to work closely with their labor counsel to ensure compliance with the Act and, to the extent possible, avoid NLRB litigation.