The National Labor Relations Board, primarily through its General Counsel, Jennifer Abruzzo, has initiated a course of seeking increasingly stiffer remedies from employers who are either found to have committed an unfair labor practice, or even for those who are subject to an unfair labor practice complaint and are merely seeking to resolve the complaint through negotiation with the National Labor Relations Boards (NLRB) agent. As discussed in Part I of this Labor Law Podcast series on remedies, the General Counsel issued two memos (General Counsel memo 22-02 and General Counsel memo 21-07) admonishing the regions to seek even more inclusive remedies, as well as instructing the Regional Directors to initiate the federal court process for injunctive relief earlier in the process and perhaps more frequently than had been the case earlier.
Husch Blackwell's Labor Law Insiders Tom Godar, Terry Potter, Adam Doerr and Rufino Gaytán continue the discussion, and review the NLRB’s more aggressive posture for 10(j) injunctive relief, which must be granted by federal courts. In addition, the discussion reviews the potential impact of tougher remedies, including the incentive for employers to litigate more often since they gain very little relief from a settlement when the Board is seeking full remedies. This reluctance to settle a charge might be even greater given the Board’s insistence that employers publicly record and distribute a notice admitting to the alleged violations of the Act, or even apologize to workers if the Board concludes that they were subject to discrimination based on their protective and concerted activities.
The Labor Law Insiders emphasize that employers should take appropriate steps to avoid, or at least minimize, the likelihood that an unfair labor practice (ULP) claim will be filed. Our panel suggests that there must be a renewed emphasis on training supervisors and communicating effectively and with transparency with employees. In addition, employers should review handbooks and other policies that might invite the Board’s scrutiny as it seeks to reverse Trump-era decisions and expand its interpretation of employee and union rights, especially as it relates to work rules pertaining to social media use and other employee communications. In addition, review by counsel of actions that might result in employee discipline or discharges is essential, given the greater risks and costs of facing a ULP charge.
Even while this podcast was being recorded, the General Counsel issued still another remedies memo (General Counsel memo 22-06), which celebrates and advocates for very harsh remedies for alleged ULPs. In addition, the Board is seeking broad remedies related to some of the hundreds of Starbucks organizing efforts, including bargaining orders as opposed to new elections, when it believes that employees’ rights to participate in an election have been violated. Those developments are the focus of a special third part to this Insider podcast series, featuring attorney Terry Potter. Terry draws on his experience and expertise to describe these changes and the further impact they have upon employee, union and employer behavior. Stay tuned for Part III of this series, which will be released very soon.