By: Jennifer L. Mora

As previously reported here, on August 12, 2021, the National Labor Relations Board’s top lawyer, General Counsel Jennifer Abruzzo, issued a memorandum instructing regional offices to send cases relating to certain issues to her office for consideration. The GC’s memorandum highlighted more than 40 Trump-era decisions that are up for reconsideration, based on Abruzzo’s view that they overruled legal precedent and are not consistent with the basic purpose of the National Labor Relations Act to foster unionization.

Making good on President Biden’s promise to become the “strongest labor President you have ever had,” on September 8, 2021, the GC issued yet another memorandum advising regional offices to seek a variety of remedies to address alleged violations of the Act. The list is not exhaustive — “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.”

  • In cases involving unlawful terminations, the memorandum advises regions to seek compensation for consequential damages, front pay, and liquidated backpay.
  • If the aggrieved employee is an undocumented worker, the memorandum recommends that regions seek compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations, and other remedies designed to prevent unjust enrichment.
  • If the matter involves unlawful conduct during a union organizing drive, the memorandum suggests that regions seek a wide range of remedies. They include, among others:

(a) granting unions contact information for and access to employees, including bulletin boards and equal time to address employees during an employer’s “captive audience” meeting about union representation;

(b) requiring employers to reimburse unions for costs incurred as part of their organizing effort, including costs associated with any re-run election;

(c) requiring an employer to read (with the union present) the “Notice to Employees and Explanation of Rights” (“Notice”) to employees, supervisors and managers, or possibly a video recording of the reading of the Notice, with the recording being distributed to employees by electronic means or by mail;

(d) requiring an employer to publish the Notice in newspapers and other news media (including social media) at the employer’s expense; and

(e) requiring employers to provide management and supervisor training on the NLRA.

Remarkably, the memorandum also suggests that regions consider instatement (hiring) of a qualified applicant of the union’s choice in the event a discharged employee is unable to return to work.

  • In unlawful failure to bargain cases, the GC advises regions to seek remedies that include requiring the respondent to submit to a bargaining schedule, submit status and progress reports to the NLRB, reimburse the other party’s collective-bargaining expenses, reinstate unlawfully withdrawn proposals, and submit to other broad cease-and-desist orders.

In her announcement, the GC advised that she plans to issue another memorandum relating to remedies that regional offices should include in settlement agreements.

Since being sworn in on July 22, 2021, the GC has lived up to President Biden’s commitment to “a cabinet-level working group that will solely focus on promoting union organizing and collective bargaining.” All of her suggested remedies reflect a major change in the remedies typically available under the NLRA. While the memorandum cites to Board decisions that have awarded some of these unusual remedies, they involved extremely egregious violations of the Act. Despite that, the GC suggests that these harsh remedies be the rule rather than the exception. As the GC’s various memoranda reflect an intent to act immediately in pursuit of her pro-labor agenda, employers would be well-advised to take notice of and plan for the GC’s aggressive stance.