The National Labor Relations Board (NLRB) issues "make whole" remedies. What that entails is changing drastically. Because non-union employers will be disproportionately affected, the stronger remedies might come as an unwelcome surprise. Show Historically, the types of remedies imposed for unfair labor practices have included standard awards such as reinstatement, backpay, rescission of unlawful or unilaterally imposed employment rules or practices, cease and desist orders, and notice posting at the workplace. The latest slew of decisions shows a very different reality for employers. On September 15, 2021, Jennifer Abruzzo, the newly appointed General Counsel of the NLRB, released guidance urging Regions to "seek 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,'" including "new and alternative" special remedies. Given the General Counsel's emphasis on protecting employees' right to pursue union representation, these remedies will figure most often in cases where there's a union organizing campaign or cases where non-union employees work in concert to address their workplace concerns. The General Counsel encouraged Regions to seek special remedies including but not limited to: Expanded Economic Remedies
Consequential Damages1
Letters of Apology, Dissemination of Notice, and Other Special Remedies
The Regions appear to have taken this message to heart. A pair of recent cases, however, raise questions about whether the NLRB should examine the use of special remedies, as well as their enforceability.2 The General Counsel Imposes (No Longer) Special RemediesIn Absolute Healthcare, decided on February 8, 2022, the Administrative Law Judge (ALJ) held that an employer committed a series of unfair labor practices in response to an organizing drive. Specifically, the ALJ concluded that the employer had: (1) unlawfully terminated an employee because they were a leading union proponent; (2) threatened employees that they would lose their tips if they formed a union; (3) promised employees they'd receive certain benefits if they did not form a union; and (4) unlawfully created an impression of surveillance when it singled out the sole female organizer. The ALJ ordered the employer to make the employee whole through awarding backpay with interest, paying compensation during the employee's search for work, and compensation for adverse tax consequences. Importantly, however, to remedy the unfair labor practices and "dissipate the detrimental and lingering effects of the [employer's] unfair labor practices," the ALJ also ordered special remedies, including requiring management—naming the specific management representative—to read the notice aloud to all affected employees in the presence of an NLRB agent and a union representative so employees "will fully perceive that the [employer] and its managers are bound by the requirements of the [National Labor Relations] Act." The ALJ also ordered the employer to provide the Union "notice of, and equal time and facilities for the Union to respond to, any address made by the [employer] to its employees on the question of union representation." As the General Counsel urges regions to pursue "the full panoply of remedies," it is likely these types of novel remedies will become the "standard." No Apology NecessaryWhile some ALJs have been inclined to liberally impose special awards, others have recognized a need to carefully examine their use. In United Scrap Metal, decided January 18, 2022, the ALJ found the employer retaliated against an employee who led a spontaneous walkout to protest a lack of COVID-19 protections. The General Counsel asked the ALJ to order the employer to write the employee a letter of apology. The ALJ refused, explaining that infringement on employees' rights under Section 7 could only be addressed through meaningful action, which a letter of apology was not. The ALJ wrote: As part of "an appropriate Order and Remedy," the General Counsel specifically requested only that the Respondent be directed to "send a letter of apology to Alejandro Castillo for each of the independent Section 8(a)(1) violations, to be signed by Managers Cuevas and Quinn Morales on behalf of Respondent." I decline to do that. The infringement of employees' Section 7 rights can only be remedied with meaningful action. A remedial order can only do that if the violations are addressed by actions restoring [sic] employee's terms and conditions that have been infringed upon and ensuring the violations do not occur again. Requiring the Respondent's managers to tell [the employee] that they're sorry is not the role of the Act. Only time will tell whether the General Counsel will appeal the ALJ's decision. If the General Counsel does appeal, the Biden NLRB will have an opportunity to consider the bounds of special remedial measures appropriately ordered in response to unfair labor practices. Takeaways for Employers:
Because questions regarding union-related matters and employees' concerted activities present a variety of complex issues, we recommend consulting one of DWT's traditional labor law experts to discuss them further. FOOTNOTES1 Existing NLRB law supports consequential damages remedies in the form of moving expenses, the cost of obtaining comparable health insurance coverage, and the cost of medical expenses incurred as a result of loss of health insurance. What was the purpose of the National Labor Relations Act?Congress enacted the National Labor Relations Act ("NLRA") in 1935 to protect the rights of employees, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.
Which is the act that made unfair labor practices by unions illegal?An unfair labor practice is an action by an employer or a union that violates the National Labor Relations Act (NLRA).
What does the National Labor Relations Act prohibit?The National Labor Relations Act forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or ...
What is the National Labor Relations Act in simple terms?The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities to address or improve working conditions; or refrain from engaging in these activities.
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