As noted above, the National Labor Relations Board (“NLRB” or the “Board”) has undergone a radical change of leadership. With two notes published on September 8^e and September 15^eNLRB (“GC”) General Counsel Jennifer Abruzzo seeks to make further progress towards fulfilling President Biden’s promise to be the “strongest union president you’ve ever had.” After NLRB President McFerran expressly declared her willingness to explore new remedies for unfair labor practice violations, GC Abruzzo asked regional offices to seek expanded remedies in disputes and settlement negotiations regarding unfair labor practices (“ULP”).

September 8^e The memorandum instructed regional offices to seek the following more aggressive remedies for violations of the National Labor Relations Act (“NLRA”) in certain types of cases:

• Illegal terminations: Regions are responsible for claiming compensation for consequential damages, upfront payment, and liquidated arrears in a combined complaint and compliance specification, if applicable. If the aggrieved employee is an undocumented worker, the GoC recommends seeking compensation for work performed under illegally imposed conditions, employer sponsorship of work permits, and other remedies designed to prevent undocumented enrichment. cause.
• Illegal failure to negotiate: Regions are responsible for seeking remedies, including establishing a negotiation schedule, status and progress reports to the NLRB, reimbursement of other party’s collective bargaining expenses, reinstatement of illegally withdrawn and other general cease and desist orders. Remarkably, the memo also mentions that the GoC is considering a new theory that presupposes monetary compensation for damages based on what the employer would have speculatively agreed to had had it fulfilled its bargaining obligations.
• Illegal conduct during an organizing campaign: The memo offers a wide range of remedies for unlawful conduct, including:
  • Increased access by unions to employees, such as providing a union with employee contact information, equal time to speak to employees if their employer holds a “captive hearing” meeting, and reasonable access to all places where notices are posted. are usually displayed.
  • Reimbursement of union organization costs.
  • Require an employer manager or officer of the board of directors to read the “Notice to Employees and Explanation of Rights” (the “Notice” to Employees).
  • Publication of the notice in newspapers and other forums paid for by the employer.
  • NLRA training requirements for managers and supervisors.

As extensive as it may be, this list is not exhaustive. The GoC further stated that “regions should ask the board of directors for the full range of remedies available to ensure that victims of unlawful conduct are compensated for losses suffered as a result of unfair labor practices”.

September 15^e memorandum deals specifically with appeals in the context of settlement negotiations. Recognizing again the President’s recently reported willingness to explore new remedies, including the award of compensatory damages, the GoC suggests that regions seek the following in settlement negotiations:

• No arrears compensation for illegally terminated employees, including: interest or late charge on credit cards incurred to cover living expenses; penalties for withdrawing money prematurely from a retirement account to cover living expenses; loss of a home or car due to inability to meet loan payments; damage to an employee’s credit rating as a result of termination; compensation for financial losses resulting from the liquidation of a savings / investment account to cover living expenses; the fees and expenses required to obtain or renew an authorization, certification or license that had been refused or lost; the cost of obtaining comparable health insurance coverage / other medical expenses incurred due to loss of coverage; and moving costs.
• Upfront payment when employee is unwilling to continue reinstatement.
• Incorporate the default language into settlement agreements.
• Require letters of apology.
• Sponsorship of work permits for undocumented workers.
• Security provisions such as admissions of judgment or promissory notes.
• Admission clauses for repeat offenders.
• Notice to employees.

Key points to remember

These memoranda send a clear message to employers that the NLRB will aggressively seek significant corrective action. These new remedies reflect a radical change in the Commission’s view of the remedies available under the NLRA. As such, employers would do well to prepare for a significant increase in enforcement actions and the remedies sought in such actions.

Developments at NLRB are likely to continue at a rapid pace, we will monitor developments in this area and provide updates as appropriate.

* Myles Moran is a legal assistant in the firm’s New York office.

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