Section 10(c) of the NLRA states that the Board shall order those found to have committed an unfair labor practice “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of the Act.”
“It is well established that the Board possesses broad discretionary authority under Section 10(c) to fashion just remedies to fit the circumstances of each case it confronts,” GC Jennifer Abruzzo wrote in Memorandum GC 21-06. “Consistent with that authority, Regions should 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.”
The NLRB has revised and updated its remedies over the years, Abruzzo said, noting that she intends to periodically issue remedy updates. She also provided examples of the breadth of remedies at the NLRB’s disposal.
For example, in cases involving unlawful firings of discriminatees, “it is critical that Regions avail themselves of all remedial tools to ensure discriminatees are restored as nearly as possible to the status quo they would have enjoyed but for the unlawful conduct,” she wrote.
Such remedies include compensation for consequential damages, front pay and liquidated back pay in a combined complaint and compliance specification where appropriate.
Where unlawful firings of undocumented workers are implicated, Abruzzo suggested remedies including 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.”
Abruzzo acknowledged that cases involving unlawful conduct committed during a union-organizing drive present a challenge with regard to remedies, but she provided a nonexhaustive list of remedies such as union access, reimbursement of organizational costs, reading of the Notice to Employees and the Explanation of Rights, publication of the notice and “broad” cease and desist orders.
Abruzzo also offered guidance on remedies for cases involving unlawful failures to bargain, explaining that “make-whole remedies that would compensate employees for the losses they sustain as a result of their employers’ failures to bargain” are under consideration.
While Regions should reach out to the Division of Advice on such cases, the memo advised that appropriate remedies would include bargaining schedules, submission of periodic progress reports, reinstatement of unlawfully withdrawn bargaining proposals, reimbursement of collective bargaining expenses, 12-month insulation periods and, again, broad cease and desist orders.
“I encourage Regions to continue exploring new and alternative remedies to ensure that we are providing the most effective relief possible to those who have been harmed by unlawful conduct,” Abruzzo concluded.
A few days later, she followed up with Memorandum GC 21-07, focused on the types of remedies that the Regions should seek in both informal and formal settlement agreements, again encouraging the use of “the most full and effective relief” for those whose rights have been violated.
“[I]n negotiating settlement agreements, in addition to seeking no less than 100 percent of the backpay and benefits owed, Regions should always make sure to seek compensation for any and all damages, direct and consequential, attributable to an unfair labor practice,” Abruzzo wrote.
Examples of such economic losses include credit card interest or late fees incurred by an unlawfully fired employee to cover living expenses, loss of a home or car because of an inability to keep up with loan payments, and penalties incurred from having to prematurely withdraw money from a retirement account to cover living expenses.
Abruzzo also suggested other forms of appropriate compensation such as moving expenses, medical expenses, the cost of obtaining health insurance coverage, compensation for damages caused to an employee’s credit rating, legal expenses, and compensation for financial losses from having to liquidate a personal savings account or an investment account to cover living expenses.
The GC emphasized the importance of the remedy of reinstatement, although she recognized that there are instances where employees may not wish to return to work. In such cases, in “addition to seeking no less than 100 percent of the backpay and benefits owed, and all compensation owed for any consequential damages, Regions should also include front pay as part of their settlement calculations where reinstatement will not be attained,” she wrote.
Abruzzo reminded the Regions to include default language that provides for the expedited issuance of Board Orders in the event of noncompliance in all settlement agreements, and encouraged the requirement that employers draft a written letter of apology to employees in situations of reinstatement.
Such letters “may assist in de-escalating lingering tensions between the employee and the employer during the reinstatement process,” she said.
The memo also addressed the sponsorship of work authorizations and other remedies in cases involving immigrant workers, the expanded use of security provisions, the inclusion of admission clauses absent special circumstances and the incorporation of various means of electronic distribution of notices to accompany physical posting.
“As the Agency is Congressionally mandated to protect the statutory rights of employees throughout our country, it is critical that our settlement agreements provide the fullest and most effective relief possible to the victims of unfair labor practices and send a message to workers nationwide,” Abruzzo wrote. “The Board agents in the field offices have a great responsibility in effectuating the Act. Through their field presence and active participation in seeking the most full and effective relief in settlement agreements, we can ensure workers’ statutory rights are vigorously protected.”
To read Memorandum GC 21-06, click here.
To read Memorandum GC 21-07, click here.
Why it matters: Employers should be aware that the NLRB is taking an aggressive approach to remedies, with the GC urging the Regions to use “the full panoply” of available remedies in cases and settlements.