NLRB General Counsel Issues Guidance to Investigators; Employers Beware of Unfair Labor Practices

With the changing of the guard in the Oval Office comes new agency heads and staff.  Recently, a new General Counsel for the National Labor Relations Board was appointed, and she recently issued a memorandum (see below) to staff across the country showing that she means business when it comes to enforcement of unfair labor practice findings.

Jennifer Abruzzo, the General Counsel, leads off her memorandum by stating, “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.”  She notes that recently, the Board “stated a willingness to explore a new make-whole remedy to those traditionally ordered: an award of consequential damages…suffered as a direct and foreseeable result of an employer’s unfair labor practice.”

As a directive to all different regions, the General Counsel stated damages sought should include the following, based on the type of unfair labor practice:

  • Consequential damages, including health insurance premiums and credit card late charges
  • Front pay;
  • Liquidated backpay;
  • Compensation for work performed under unlawfully imposed terms;
  • Employer sponsorship of work authorizations;
  • Union access to employee contact information and access to an employee audience;
  • Reimbursement of organizational costs;
  • Reading of the notice to employees and the explanation of rights to employees;
  • Publication of notice of unfair labor practices, paid for by the employer;
  • Extended posting periods for notices where ULPs have been pervasive;
  • Training of employees on employees’ rights under the Act
  • Instatement of a qualified applicant of the union’s choice in the event a discharged employee is unable to return to work; and
  • Broad cease-and-desist orders.

This list is not exclusive, and the General Counsel emphasized that additional guidance will be issued pertaining to settlements soon.  However, the General Counsel encouraged employers to “continue exploring new and alternative remedies to ensure that (the NLRB is) providing the most effective relief possible to those who have been harmed by unlawful conduct.”

In other words, the Board is done messing around, and employers must remain cautious when it comes to observing employees’ rights in the workplace.  With a shift to a more employee-friendly Board, employers can expect heavier enforcement of employee rights and more findings of NLRA violations.  If you, or your organization, have questions pertaining to the rights of your employees to organize or their protections under the NLRA, contact the Wiley Law Office, for legal advice that works.

General Counsel’s Memorandum