On September 8, 2021, the NLRB released NLRB Memo GC 21-06 which directs NLRB regional offices to consider “the full panoply of remedies available” when determining compensation to employees and unions subjected to unfair labor practices (“ULP”).
Under the National Labor Relations Act, private sector employees enjoy the right to collectively bargain over the terms and conditions of their employment. They are also permitted to engage in protected, concerted activities to address or improve working conditions. The Act defines a variety of employer conduct that constitutes an ULP. Such acts include threatening employees who engage in collective bargaining or otherwise interfering with employee concerted actions.
Historically, the NLRB has limited employee recovery for employer ULPs to just back pay. Back pay alone was considered sufficient to make employees whole for any employer ULPs. But now, the NLRB is directing their regional offices to consider additional remedies such as consequential damages, front pay, or liquidated back pay. The Board provides several examples of consequential damages that may be awarded, including compensation for health care expenses incurred by an unlawfully terminated employee, compensation for credit card late fees, or compensation for an employee’s loss of home or car due to an unlawful termination. The purpose of this new directive is to ensure employees who are victims of unfair labor practices are “made whole” for their losses and “afforded full relief under the Act.”
Additionally, the NLRB memo also increases the remedies available to unions who are victims of employer ULPs during organizing. The memo provides a non-exhaustive list of additional remedies for regional offices to consider in the face of employer ULPs. These remedies include union access to employer communication outlets, reimbursement of organizational costs, employer notice to employees of their rights, visitorial and discovery clauses to assist the Agency in monitoring compliance with the Board’s Orders, and employee training, among other remedies. Further, for employer ULPs committed during bargaining, the NLRB directs regional offices to consider instituting bargaining schedules, requiring employers to update the Agency on bargaining progress, and reimbursement of collective bargaining expenses, among other remedies.
Overall, this memo signals a significant potential increase in the cost of employer ULPs committed against employees or the union. However, there are no similar additional remedies available to employers who are victims of ULPs. Thus, now more than ever, it is critical for employers to ensure their compliance with the National Labor Relations Act.
The attorneys at Fishel Downey regularly advise officials on compliance with the National Labor Relations Act. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.