NLRB General Counsel Jennifer A. Abruzzo followed up her 10(j)-warning shot with another admonition, this time encouraging regions to request 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.”
General Counsel Abruzzo began her September 8, 2021, Memorandum (GC21-06) by reminding the public that the Board has expressed “a willingness to explore a new make-whole remedy to those traditionally ordered: an award of consequential damages to make employees whole for economic losses (apart from the loss of pay or benefits) suffered as a direct and foreseeable result of an employer’s unfair labor practice.” Consequential damages, however, are not the only new remedies she hopes will be utilized in the near future. Indeed, Memorandum GC21-06 outlined extensive new potential remedies that General Counsel Abruzzo wants to explore in three major unfair labor practice areas, those being; (1) alleged wrongful terminations, (2) organizing campaigns issues, and (3) refusals to bargain. Per the General Counsel, potential remedies that Regions should seek include:
Remedies in Cases Involving Unlawful Firings:
- Consequential damages, Front pay, Liquidated backpay;
- Remedies previously highlighted in GC Memorandum 15-03, such as notice readings, publication of the notice in newspapers, and/or other forums, training for employees on their rights under the Act, training for supervisors and managers on compliance with the Act, Gissel bargaining orders, union access to employee contact information, reimbursement for organizing or bargaining expenses, consequential damages, instatement of qualified referred candidates, and any other remedies that may be appropriate in a particular case; and,
- Compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations, and any other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers.
Remedies in Cases Involving Organizing Campaign Issues:
- Union access;
- Reimbursement of organizational costs;
- Reading of the Notice to Employees and the Explanation of Rights to employees by a principal or, in the alternative, by a Board Agent, in the presence of supervisors and managers, with union representatives being permitted to attend all such readings, or, where appropriate, video recording of the reading of the notice and the Explanation of Rights, with the recording being distributed to employees by electronic means or by mail;
- Publication of the notice in newspapers and/or other forums (such as online publications and websites maintained by an employer, including social media websites), chosen by the Regional Director and paid for by the employer, so as to reach all current and former affected employees, as well as future potential hires;
- Visitorial and discovery clauses to assist the Agency in monitoring compliance with the Board’s Orders;
- Extended posting periods for notices where the unfair labor practices have been pervasive and occurred over significant periods of time;
- Distribution of notices and the Board’s Orders to current and new supervisors and managers
- Training of employees, including supervisors and managers, both current and new, on employees’ rights under the Act and/or compliance with the Board’s Orders;
- Instatement of a qualified applicant of the union’s choice in the event a discharged employee is unable to return to work; and,
- Broad cease-and-desist orders requiring violating parties to cease and desist “in any other manner” from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.
Remedies in Cases Involving Refusals to Bargain
- Bargaining schedules;
- Submission of periodic progress reports to the Agency on the status of bargaining;
- 12-month insulation periods, including extensions of the certification year, from the date an employer commences compliance with its bargaining obligations pursuant to a Board’s Order, during which a union’s status as bargaining representative may not be challenged;
- Reinstatement of unlawfully withdrawn bargaining proposals;
- Reimbursement of collective-bargaining expenses;
- Engagement of a mediator from the Federal Mediation and Conciliation Service (FMCS) to help facilitate good-faith bargaining between parties;
- Training of current and/or new supervisors and managers in cases involving failures to bargain; and,
- Broad case-and-desist orders.
While the General Counsel’s list of potential new remedies is extensive, it is not exhaustive. The General Counsel took care to indicate that she, and therefore the Board, will spare no level of creativity to provide what she considers “the most effective relief possible.” The listed potential remedies, however, show that the Board looks to become deeply involved in the labor management relationship when imposing unfair labor practice penalties. These remedies have the potential to not only financially impact employers, but also impact the level of control employers have going forward. Employers should take notice of the General Counsel’s must recent warning shot.
If you have any questions regarding the General Counsel’s memorandum, potential remedies, or issues related to labor and employment law, feel free to contact an attorney in Frantz Ward’s Labor & Employment Practice Group.