Are Expanded Remedies on the Horizon in Unfair Labor Practice Cases Before the National Labor Relations Board?

Issue March/April 2022 April 2022 By Kristen A. Barnes
Labor & Employment Law Section Review
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Kristen A. Barnes

In July 2021, President Joe Biden appointed Jennifer Abruzzo as the new general counsel for the National Labor Relations Board (NLRB). Since her appointment to a four-year term, Abruzzo has issued a number of memoranda setting new policies for the agency. In particular, General Counsel Abruzzo has expressed a desire to expand upon the scope of remedies available to workers impacted by unlawful actions both in the litigation of unfair labor practice charges and through settlement agreements. 

General Counsel Memorandum GC 21-06: New Remedial Priorities In Unfair Labor Practice Litigation 

Citing the NLRB’s broad statutory authority under the National Labor Relations Act (NLRA or “the Act”) to devise appropriate remedies in unfair labor practice cases, the general counsel advised the NLRB regional offices to seek a full scope of remedies for workers impacted by unfair labor practices when litigating cases going forward. In addition to a traditional back pay and reinstatement order, potential remedial requests in cases involving unlawful worker terminations may include: 

  • Consequential Damages: Potential consequential damages requests could include compensation for economic losses suffered by impacted workers outside of back pay, such as for health care expenses incurred as a result of the unlawful conduct, credit card late fees and interest incurred, penalties for early retirement withdrawals, increased transportation and child care costs, and/or costs associated with the loss of a home or car resulting from the job loss. In a July 2021 case, Vorhees Care & Rehabilitation Center, the current NLRB chairman indicated a willingness to consider the issue of consequential damages and other ways to make workers completely whole. Thereafter, in Thryv, Inc., a pending case involving the unlawful layoff of workers, the NLRB accepted briefs on the issue of whether the NLRB should expand its traditional make-whole remedies to account for consequential damages of workers harmed by unfair labor practices. Given the NLRB’s recent request for briefs, a decision on the appropriateness of consequential damages in unfair labor practice cases is likely to be forthcoming in 2022. 

  • Front Pay: In addition to back pay awards, the regions will seek front pay in appropriate unlawful termination cases. The NLRB previously signaled that it would consider the issue of front pay in an appropriate case in lieu of reinstatement for unlawfully terminated workers.

  • Additional damages for undocumented workers: In cases involving the unlawful termination of undocumented workers, the regions will seek compensation for workers for time worked under unlawful terms and employer sponsorship of work authorizations. These remedies are in addition to potential requests to require the employer to read notices to workers, publish notices in newspapers, and to train workers, managers and supervisors on workers’ rights under the NLRA.
The general counsel also indicated a desire to expand upon potential remedies sought in cases involving unlawful conduct in organizing campaigns, and in response to bad faith bargaining on the part of employers. 

Additional potential remedy requests for violations occurring during a union organizing drive may include requests granting the union access to workers, such as by requiring employers to provide the union with employee contact information, time to address employees during employer meetings regarding union representation, and access to bulletin boards. The region may also seek to require employers to pay unions for additional costs incurred to rerun elections set aside due to employer conduct, among other measures like enhanced notice postings and worker and supervisor trainings on workers’ rights under the Act. 

Apart from damages, the general counsel requested that the NLRB regions seek further distribution of notice postings alerting workers to both violations of the NLRA committed by their employers and workers’ rights under the NLRA. In addition to physical postings and email distribution, the regions were directed to seek circulation of notices via text messaging and social media sites. 

As of September 2021, the NLRB is composed of a majority of members appointed by the Biden administration. Given the current composition of the board, potential exists for the full NLRB to consider and adopt changes in the areas targeted by General Counsel Abruzzo. 

General Counsel Memorandum GC 21-07: Changes Implicating NLRB Settlements

Beyond seeking additional remedies in unfair labor practice litigation, the NLRB general counsel directed the regions to seek all of the new remedies covered by General Counsel Memorandum GC 21-06 in NLRB settlement agreements, in addition to other measures not necessarily available through litigation, to make impacted workers fully whole. 

Among the areas for expansion of remedies in settlements outlined in the memorandum, the general counsel directed the regions to seek 100% of the back pay and back benefits owed to impacted workers. Previously, the regions had discretion to slightly discount back pay and back benefits amounts owed in settlements of unfair labor practice charges. 

In cases where an unlawfully terminated worker will not be reinstated, the regions were directed to seek not only front pay but also neutral references, agreements not to contest unemployment compensation, and employer paid-for use of work placement services. Where a settlement agreement covers reinstatement, the regions will further seek to require employers to provide the impacted workers with letters of apology. 

Going forward, those representing workers in unfair labor practice should evaluate if workers have damages in any of these expanded areas and seek to both gather and preserve documentation of those damages. 

Kristen A. Barnes is an associate at McDonald Lamond Canzoneri in Southborough, focusing her practice on the representation of labor unions.