Several months ago, we settled an unfair labor practice charge filed by an employee against our client alleging retaliation for the employee’s protected concerted activity. The employee had enlisted the support of other employees in challenging certain pay practices, and it was alleged that the charging party was terminated because of those efforts, rather than for his performance. We were able to resolve the charge with a settlement agreement.
The settlement agreement, consistent with the practice of the National Labor Relations Board (NLRB), included posting a notice informing employees that the employer will comply with the National Labor Relations Act (NLRA), pay back-pay, and a provision in the agreement that our client denied violating the law. The employee was not interested in reinstatement so that was not a condition of the settlement agreement, although normally it would be included in a termination case. The NLRB has settled termination cases with these terms for at least 40 years, if not more.
Today, that settlement may not have been possible. On September 8, 2021, Jennifer A. Abruzzo, the NLRB’s General Counsel, issued a memorandum in which she discussed the NLRB’s revision and updating of the remedies available to victims of unfair labor practices. On September 15, 2021, General Counsel Abruzzo issued a second memorandum, describing the types of remedies that regions should seek in settlement agreements. Both memoranda signal a significant expansion of the types of remedies that Regional Offices will seek when they determine that a party has engaged in an unfair labor practice, or in a settlement agreement with the NLRB.
General Counsel Abruzzo stated in the memoranda that the Board possesses broad discretionary authority to create remedies to fit the circumstances of every case. She wrote that as part of the make-whole remedy to which victims are entitled, the Regional Office should seek an award of consequential damages to make employees whole for economic losses, apart from the loss of pay or benefits, either in the settlement agreement or after a determination that a party violated the NLRA. Abruzzo provided examples of economic losses suffered as a direct and foreseeable result of an employer’s unfair labor practice for which the Regional Offices should seek a remedy in a settlement agreement or after a determination that a violation occurred. Examples include:
- Compensation for health care expenses that an employee incurred as a result of the unlawful termination of health insurance.
- Compensation for credit card late fees.
- Compensation for the loss of a home or car that an employee suffered as a result of an unlawful discharge.
- Front pay when an employee is not interested in reinstatement.
- Incorporating default language into a settlement agreement.
- Requiring letters of apology.
- Sponsorship of work authorizations for undocumented employees who unlawfully terminated.
In cases involving unlawful conduct committed during a union organizing campaign, where an employer engaged in unlawful conduct that interfered with the “laboratory conditions” necessary for a free and fair election, she suggested examples of remedies that Regional Offices could seek from the NLRB:
- Union access to the employer’s premises or bulletin boards.
- Reimbursement of the union’s organizational costs.
- Reading of the notice to employees and the explanation of rights to employees by a management official or by an NLRB agent.
- Training employees, including supervisors and managers, on employees’ rights under the NLRA.
- Hiring a qualified applicant of the union’s choice in the event a discharged discriminate is unable to return to work.
In cases involving unlawful failures to bargain in good faith with a union or an employer, General Counsel Abruzzo stated that she was considering make-whole remedies that would:
- Compensate employees for the losses they incurred as a result of their employer’s refusal to bargain or failure to bargain in good faith.
- Dictate bargaining schedules and require bargaining not less than twice a week at least six hours per session until an agreement or bona fide impasse is reached.
- Reimburse collective bargaining expenses.
We already know that the current Democratic majority NLRB is far more pro-union and pro-employee than was the Republican majority NLRB under President Trump. We had previously been put on notice that the NLRB will begin reversing many of the decisions made under President Trump regarding employee handbook provisions, using company email for union organizing, union access to private property, and other types of cases. General Counsel Abruzzo’s September 8 and September 15, 2021 memoranda are further evidence of the significant changes which are occurring at the NLRB. We expect to see much harsher remedies sought from employers in settlement agreements and when an employer is found to have engaged in an unfair labor practice.