Understanding the New NLRB General Counsel Memo on Remedies

Today, the National Labor Relations Board’s General Counsel, Jennifer Abruzzo, released a highly relevant and impactful memo on the office’s intent to seek a rather stunning new array of remedies in unfair labor practice cases.

As I wrote about the last GC memo, if the Board does a fraction of the things Abruzzo calls for in this new memo, she’ll be one of the most consequential GC’s in NLRB history. It’s no overstatement to say that this memo calls for a complete overhaul of NLRB remedies – at least those feasible without Congressional action. It would go a significant distance toward fixing one of the (though certainly not all of the) major flaws in the current NLRA regime: it’s remedial toothlessness.

The memo is short, containing mainly a list of the recommended remedies. Some of the highlights include the following directions to the NLRB regions:

• In cases involving discriminatory discharges, the GC writes that “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. In furtherance of that aim, Regions should seek compensation for consequential damages, front pay, and liquidated backpay.” This could include things like “compensation for health care expenses that an employee may incur as a result of an unlawful termination of health insurance, or compensation for credit card late fees incurred or for loss of a home or a car that an employee suffers as a result of an unlawful discharge.”
• In cases where an undocumented worker is fired in violation of the Act, Regions are to seek “compensation for work performed under unlawfully imposed terms (such as work performed under an unlawfully reduced pay rate), 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.” This last remedy includes “ordering payment by an employer of backpay equivalent to what it would have owed an undocumented discriminatee and that such backpay could be paid into a fund to make whole discriminatees whose backpay the Board had been unable to collect.”
• Where unlawful employer conduct occurs during an organizing drive, Regions should seek inter alia the following remedies: union access including equal time to address employees (!), reimbursement of union organizing expenses, an order requiring the employer to read the Board’s remedial notice to employees (in addition to posting the notice on websites, social media, and sending via text and email), and “instatement of a qualified applicant of the union’s choice in the event a discharged discriminatee is unable to return to work.” (On the little-used but potentially critical remedy of notice reading, Andy wrote this post and I this law review article on the subject.)
• In bargaining cases, the GC reiterates her recommendation that Regions submit cases to advice on the applicability of Ex-Cell-O Corp. so the Board can revisit the question of make-whole remedies. Among other additional remedies Regions are to seek, Abruzzo calls on them to order reimbursement of bargaining expenses in cases of bad-faith bargaining.

I’ve listed here a small subset of what’s in the remarkable and inspiring memo. Anyone interested in the development of labor law should take a look.