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 group.

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Photo of Jonathan Scandling Jonathan Scandling

Jon focuses his practice on the representation of management in all aspects of labor and employment law. He provides counseling and training to clients for best practices on a wide range of human resource issues such as terminations, compliance with employment laws, workplace…

Jon focuses his practice on the representation of management in all aspects of labor and employment law. He provides counseling and training to clients for best practices on a wide range of human resource issues such as terminations, compliance with employment laws, workplace investigations, and the preparation of policies and employment agreements. Jon also assists with the implementation of arbitration agreements and policies for employers.

Jon has extensive experience in public sector labor & employment law, with much of his practice revolving around traditional labor matters. Prior to Frantz Ward, Jon worked for Cuyahoga County as an Assistant Law Director in the Labor & Employment Group. While at the County, Jon’s practice involved traditional labor matters where he represented management in a complex labor/management relationship comprised of over 37 separate bargaining units, employment litigation and general employment counseling. He appeared in both state and federal court, and represented management in State Employment Relations Board hearings, contract negotiations, grievance arbitration and various other forums. Jon also has extensive experience dealing directly with various public sector unions, ranging from deputy and correction officers to office workers and clerical employees. He also was a law clerk for the State Employment Relations Board in Columbus.

Photo of Ryan T. Smith Ryan T. Smith

Ryan focuses his practice on employment litigation and labor relations. He represents management in state and federal courts and before administrative agencies in a wide range of matters, including employment discrimination, retaliation, and harassment, wage and hour disputes, including class and collective actions…

Ryan focuses his practice on employment litigation and labor relations. He represents management in state and federal courts and before administrative agencies in a wide range of matters, including employment discrimination, retaliation, and harassment, wage and hour disputes, including class and collective actions, and breaches of non-competition and other types of employment agreements. Ryan also represents employers in traditional labor matters, at arbitrations and before the National Labor Relations Board.

When not representing employers in active disputes, Ryan counsels them on key employment decisions such as wage and hour compliance, leave administration, and terminations, and on various aspects of the collective bargaining relationship. He also drafts employment agreements and policy manuals.

Photo of Michael J. Frantz Michael J. Frantz

For over forty years, Mike’s practice has been devoted to the exclusive representation of employers and their management teams in dealing with the full range of labor and employment issues. He has represented employers in contract negotiations with virtually every major union in…

For over forty years, Mike’s practice has been devoted to the exclusive representation of employers and their management teams in dealing with the full range of labor and employment issues. He has represented employers in contract negotiations with virtually every major union in the U.S. and Canada. Throughout his career he has focused on representing health care and higher education institutions, as well as manufacturing companies and service organizations.

Mike’s practice also includes serving as outside general counsel for a number of his clients. He also serves as a member of the Board of Directors or in other corporate positions for many clients. Nothing gives Mike greater satisfaction as a lawyer than to become known as a trusted advisor to those clients.

Mike currently serves as a member of the firm’s Management Committee that is charged with the responsibility of focusing on the strategic planning and overseeing the day-to-day administration of the firm. He has been recognized at the highest ranking, Band 1, in the area of Labor and Employment by Chambers USA: America’s Guide to Leading Lawyers in Business and designated Best Lawyers’ “2018 Lawyer of the Year” in Labor Law—Management in Cleveland. Mike is continuously named to The Best Lawyers in America and the Ohio Super Lawyers lists.