Fulfilling President Biden’s pledge to be the most pro-union president ever, the National Labor Relations Board (NLRB) continues its pro-union tilt. The remedies which will be sought, both in a successful action or even in resolving an Unfair Labor Practice (ULP) charge through settlement, will be more aggressive than ever. General Counsel Abruzzo, through several General Counsel Memoranda, outlined this more aggressive stance towards providing financial and non-financial remedies.
For example, in Memorandum GC 21-06, General Counsel Abruzzo wrote that the “regions should request from the Board the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.”
https://apps.nlrb.gov/link/document.aspx/09031d458353f6b9
Then, in GC 22-02, in a memorandum titled “Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns,” General Counsel Abruzzo wrote, “I believe it is incumbent upon the Agency to consider seeking Section 10(j) injunctions immediately after determining that workers have been subject to threats or other coercive conduct during an organizing campaign, before an employer follows through on its threats or coercion when it becomes more challenging to fully erase the chilling impact on organizing activity.”
https://apps.nlrb.gov/link/document.aspx/09031d4583683bd0
Then, on June 23, 2022, following the initial recording of the podcast, still another memorandum, GC 22-06, was released by General Counsel Abruzzo which reinforces the advice to Regional Directors set forth in the earlier memorandums and provides an update on the Board’s progress in that regard, boasting, “Regions have secured compensation for derivative economic harm, including reimbursing fees for late car loan payments and late rent, payment of monthly interest on the loan a discriminatee took out to cover living expenses, the cost of baby formula due to the loss of a workplace breast pumping station, and the cost of a retrofitting a discriminatee’s car to make it usable in a new job.”
https://apps.nlrb.gov/link/document.aspx/09031d45837c61b8.
That memorandum will be discussed more fully in Part II of this podcast episode.
Husch Blackwell’s Labor Law Insiders, Thomas Godar, Terry Potter, Rufino Gaytán and Adam Doerr, offer context to recent NLRB memoranda, including background to NLRB remedies. The panelists contrast the historical reach of NLRB remedies to the broader approach urged by the Board’s General Counsel under a more expansive definition of “full remedies.”Further, the panelists take on the implications of the General Counsel’s pursuit of injunctive relief under Section 10(j) of the National Labor Relations Act as a preventative tool rather than a remedial one. This will likely change the calculus for employers who would dispute that any violation has taken place. For example, employers might now be facing expensive federal injunction litigation along with the long and uncertain trial to a decision by the Board. The panel suggested that these remedies, and the mandate to Regional Directors of the various NLRB offices to seek these full remedies, may in some instances incentivize settlements due to the threat of litigation costs, but may also deter employers from achieving a resolution where the cost of settlement is the same as the worst-case-scenario at trial. Where that is the case, our Insiders suggest that employers may choose to force the NLRB through the rigors of actually proving that there has been an unfair labor practice committed and retain its appeal rights.
The panel also addresses the non-economic remedies that more employers will find unpalatable, including those discussed in the most recent General Counsel memorandum. These include such remedies as letters of apologies to reinstated employees and the creation of video recordings of a NLRB agent reading notices in the presence of senior charged party officials, among others.
The second part of this episode will further explore the options for reviewing and potentially resolving complaints, the incentive to defend against such ULP complaints through trial, and the steps to be undertaken to avoid, as far as can be possible, the threat of employees charging employers with unfair labor practices.