Expanding Remedies in Unfair Labor Practice Cases

Labor & Employment @lert

Date: July 05, 2022

Under the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“Board”) is unable to award penalties when an unfair labor practice (“ULP”) is committed by an employer or union.[1] Instead, the Board may award make-whole remedies that are designed to restore the party to their pre-violation status. A recent memorandum from the Board’s General Counsel, Jennifer A. Abruzzo, however, shows how far this Board is willing to go in issuing make-whole remedies.

On September 8, 2021, the Board’s General Counsel released a memorandum encouraging Regional attorneys to “request 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.”[2] The September 2021 memorandum provided numerous examples of remedies that the General Counsel encouraged the Regional attorneys to request from the Board, such as:

  • Reimbursement of organizational costs (e.g., requiring an employer to pay for organizational costs that a union incurs in a re-run election because the employer has engaged in unlawful conduct sufficiently egregious as to cause the results of the prior election to be set aside);
  • Reinstatement of unlawfully withdrawn bargaining proposals (where there was an unlawful failure to bargain); and
  • Reimbursement of collective-bargaining expenses (e.g., requiring a respondent to reimburse an opposing bargaining party for negotiation expenses incurred during the entire period in which it fails to bargain in good faith where there was an unlawful failure to bargain).

On June 23, 2022, the Board’s General Counsel released a new memorandum, providing an update on the efforts to secure these expansive remedies.[3] The memorandum notes that the secured remedies have “secured compensation for derivative economic harm,” including:

  • Reimbursing fees for late car loan payments and late rent;
  • Payment of monthly interest on a loan a discriminatee took out to cover living expenses;
  • The cost of retrofitting a discriminatee’s car to make it usable in a new job;
  • Creation of a video recording of the Board agent reading [a] notice, in the presence of senior charged party official, to be distributed to employees at multiple facilities; and
  • Union’s bargaining costs during period of employer bad faith bargaining.

The June 23, 2022 memorandum affirms that the General Counsel will continue pushing for expansive remedies requests at the Board, and that the Board will oblige these requests.

In addition to the efforts to maximize economic remedies under current Board law, the General Counsel has also requested the Board reconsider, and overrule, current Board precedent limiting economic remedies. On June 24, 2022, the day after the General Counsel’s memorandum updating the recent remedies secured by Regional attorneys, the General Counsel filed a motion[4] requesting the Board overrule Ex-Cell-O Corp.[5] Ex-Cell-O Corp. provides that when there has been a violation of the NLRA by stalling or delaying the bargaining process, the Board’s remedial power is to order the parties to start bargaining. If Ex-Cell-O Corp. is overruled, Regional attorneys can, and under the General Counsel’s most-recent guidance, will seek wages employees “should have received” but missed out on due to the employer’s delay during the collective bargaining process as a remedy for the violation.

Practically, employers should take preventive measures to ensure compliance with the NLRA. The General Counsel’s guidance on pursuing remedies for derivative economic harm and legal action to undo current limits on economic remedies creates more liability for employers.

FOR MORE INFORMATION

For more information, please contact:

Eric S. Clark
513.352.6555
Eric.Clark@ThompsonHine.com

Bret W. Vetter
513.352.6502
Bret.Vetter@ThompsonHine.com

or any other member of our Labor & Employment group.

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[3] https://apps.nlrb.gov/link/document.aspx/09031d45837c61b8 (Update on Efforts to Secure Full Remedies).

[4] https://t.co/YvR4K2Cyti (General Counsel’s Motion)

[5] Ex-Cell-O Corp., 185 NLRB 107 (1970).