Jennifer Abruzzo, the recently confirmed general counsel of the National Labor Relations Board (NLRB), last week issued a memorandum signaling the agency will broadly be expanding the remedies it seeks against companies that engage in unfair labor practices.
Released Sept. 8, the memorandum stresses the NLRB “possesses broad discretionary authority” under Section 10(c) of the National Labor Relations Act (NLRA) to impose remedies related to unfair labor practices. Consistent with that authority, Abruzzo encourages regional directors 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.”
The memo represents a stark departure from the types of limited remedies traditionally awarded by the NLRB: straight back pay in discharge cases. In contrast, Abruzzo describes various types of remedies regional directors should request in “all appropriate cases.”
Regarding unlawful firings, for example, the NLRB encourages regions to seek compensation for consequential damages, front pay, and liquidated back pay.
Where the unlawful firings implicate undocumented workers, remedies should include “compensation for work performed under unlawfully imposed terms (such as work performed under an unlawfully reduced pay rate), 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,” the memo states.
A significant portion of the memo discusses remedies involving unlawful conduct committed during a union organizing drive. In these cases, Abruzzo suggests the remedies regional directors should seek from the NLRB include, but are not limited to:
- Union access, such as requiring employers to provide unions with employee contact information;
- Reimbursement of organizational costs;
- Reading of the “Notice to Employees” and “Explanation of Rights” by a principal or board agent;
- Publication of the notice, such as in newspapers, Websites, or on social media;
- Extended posting periods for notices in the case of “pervasive” unfair labor practices that occurred “over significant periods of time;”
- Visitorial and discovery clauses to assist the agency in monitoring compliance with NLRB orders;
- Training on employees’ rights under the NLRA and/or compliance with the Board’s orders;
- Instatement of a qualified applicant chosen by the union if a discharged employee is unable to return to work; and
- Broad cease-and-desist orders.
Abruzzo further signaled more remedy updates are on the way, effectively expanding what the NLRB views as unfair labor practice. “I will be issuing another memorandum shortly that sets forth the types of remedies that regions should incorporate in settlement agreements,” she stated.
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