Last month, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued not one, but two memoranda directing Regional Offices to pursue a vastly expanded array of “remedies” against employers in unfair labor practice cases. From management’s perspective, the actions prescribed by these memoranda appear to be more punitive than remedial. This alert reviews GC 21-06 titled “Seeking Full Remedies,” issued on September 8, 2021. For a summary of GC 21-07 titled “Full Remedies in Settlement Agreements,” click here.

GC 21-06 'Seeking Full Remedies'

In this memorandum, Abruzzo announced a “crackdown” on unfair labor practices committed by employers. Specifically, Abruzzo noted that under the National Labor Relations Act, the Board possessed “broad discretionary authority to fashion just remedies to fit the circumstances of each case it confronts,” then went on to state that NLRB Regional Offices should 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.” (Emphasis added). Translation: Employers can expect tougher penalties (or “remedies” in Board parlance) across a wide range of cases.

Stiffer Penalties in Discharge Cases

As noted in our previous article, the General Counsel is instructing Regional Offices to avail themselves of “all remedial tools” in cases involving discriminatory discharge in violation of the Act, including compensation for consequential damages, front pay and other compensation, in addition to the traditional remedies of reinstatement to employment and back pay.

Unfair Labor Practices During a Union Organizing Drive

According to Abruzzo, cases involving employer unfair labor practices in the context of union organizing present particular challenges that require creative remedies. For example, Regional Offices are instructed to seek the following in all appropriate cases:

• Union access, to include requiring an employer to provide a union with employee contact information, equal time to address employees if they are convened by an employer for a captive audience meeting about union representation and reasonable access to an employer’s bulletin boards
• Reimbursement of a union’s organizational costs, e.g., requiring an employer to pay for organizational costs that a union incurs in a re-run election necessitated by employer unfair labor practices rendering the first election invalid
• Publication of the Notice to Employees and Explanation of Rights in newspapers and/or other forums such as the employer’s website and social media websites chosen by the Regional Director and paid for by the employer
• Visitorial and discovery clauses to assist the agency in monitoring compliance with the Board’s orders
• 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, with such training materials to be approved by the Board
• Instatement of a qualified applicant of the union’s choice in cases where a discharged discriminatee is unable to return to work

These proposed remedies reflect an extreme departure from the Board’s current practice, and certain provisions, including compelled union access to the employer’s property and compulsory reading of notices to employees may be unconstitutional.

Unfair Labor Practices Relating to Bargaining

Abruzzo outlined an array of novel remedies in cases involving an employer’s unlawful failure to bargain with a certified union, including:

• Bargaining schedules, “e.g., requiring a respondent to bargain not less than twice per week, at least six hours per session, until an agreement or bona fide impasse is reached”
• Submission of periodic progress reports to the agency on the status of bargaining, such reports to be signed under oath by the employer
• Reinstatement of unlawfully withdrawn bargaining proposals
• Reimbursement of collective bargaining expenses incurred by the other party during the entire period in which the offending party failed to bargain in good faith
• Mandatory engagement of a mediator from the Federal Mediation and Conciliation Service (currently, both parties must consent to the engagement of a mediator)
• Training of current and/or new supervisors and managers on bargaining obligations

Again, these proposed remedies mark a drastic escalation from the Board’s current approach regarding unlawful refusals to bargain, which typically is limited to issuing “cease and desist” orders and other less severe sanctions.

Are Secret Ballot Elections at Risk?

As alarming as these provisions should be to all employers, nonunion businesses should be terrified by the General Counsel’s interest in so-called “Joy Silk” bargaining orders. Specifically, Abruzzo contends that in cases in which an employer refuses to recognize and bargain with a union that has presented evidence of a card majority and the employer is unable to establish a good faith doubt as to majority status, the employer has violated the Act – and to remedy such a violation, the Board should order the employer to recognize and bargain with the union. But wait, you say – can’t the employer insist on an NLRB election to determine whether the union has majority support?

Perhaps not, based upon Abruzzo’s approving reference to Joy Silk Mills, Inc., in which the Board observed that an employer did not necessarily have the right to test a union’s claim to majority status through the Board’s election process. However, Joy Silk was decided in 1949, and it was later repudiated by the Board and deemed “dead” by the courts. For the last several decades, it has been universally accepted that an employer is not required to recognize a union on the basis of signed cards – hence the impetus for “card check” legislation during the Obama administration. Unfortunately, it seems that Abruzzo may be steering towards a card check regime by seeking to revive Joy Silk bargaining orders.

Key Takeaways

As we have previously warned, employers face a much more daunting – even harsh – enforcement regime under the newly reconstituted NLRB. It is no coincidence that the major policy initiatives Abruzzo has announced to date are designed to stiffen enforcement against employer unfair labor practices, with nary a mention of union ULP’s. To the extent the Board actually implements these draconian remedies, there likely will be challenges based upon the First and Fifth Amendments to the U.S. Constitution. However, it would take years of litigation to resolve such challenges, and with no near-term prospects for legislative relief, employers can only buckle down and invest the time and resources required to review their labor management policies, practices and procedures to ensure legal compliance and avoid the increasingly sharp bite of the NLRB.

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