NLRB General Counsel Jennifer Abruzzo Issues Memo on Seeking all Available Remedies to Fully Address Unlawful Conduct
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Today, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Regions advising them to seek a variety of remedies to ensure that victims of unlawful conduct under the National Labor Relations Act are made whole for losses they have suffered.
“The Board possesses broad discretionary authority to fashion remedies to fit the circumstances of each case that comes before it,” said General Counsel Abruzzo. “It is so important that we utilize every possible tool we have to ensure that those wronged by unlawful conduct obtain true justice. To do this, we need to examine all of the ways that workers have been hurt by unfair labor practices and seek remedies that will fully address them.”
The memo discusses a variety of remedies to be sought in different cases. In cases involving unlawful firings, Regions should seek compensation for consequential damages, front pay, and liquidated backpay. Where unlawful firings of undocumented workers are implicated, Regions should seek compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations, and other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers.
In cases involving unlawful conduct committed during a union organizing drive, Regions should seek remedies, such as: union access to employees and contact information; reimbursement of organizational costs; reading of the Notice to Employees and Explanation of Rights by a principal or board agent to employees, supervisors and managers, with union representatives present; distribution of such video recorded Notice to Employees and Explanation of Rights readings and postings on social media, local newspapers and online publications.
In cases involving unlawful failures to bargain, Regions should seek remedies that include: bargaining schedules, submission of progress reports to the Agency on the status of bargaining, reimbursement of collective-bargaining expenses, and broad cease-and-desist orders.
Relatedly, the General Counsel previously issued a memorandum directing Regions to submit cases to the Division of Advice in which an employer refuses to recognize and bargain with a union when presented with evidence of a card majority and the employer does not have good faith doubt as to majority status. As the General Counsel considers Joy Silk-type bargaining orders, Regions should seek Gissel bargaining orders where appropriate. And, in this same memo, the General Counsel also directed Regions to submit all cases concerning the applicability of Ex-Cell-O Corp, while she considers make-whole remedies that would compensate employees for the losses they sustain because of their employers’ failures to bargain.
The General Counsel advised that she plans to issue another memorandum soon that sets forth the types of remedies that Regions should incorporate in settlement agreements.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.