NLRB GC directs staff to seek expansive remedies for workers

3 minute read

The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C., U.S., May 14, 2021. REUTERS/Andrew Kelly

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  • Memo says NLRB staff should strive to make workers whole
  • GC seeks remedies for workers' late bills, healthcare expenses
  • Board could expand notice requirements to texts, social media

(Reuters) - National Labor Relations Board General Counsel Jennifer Abruzzo has directed regional staff to seek the "full panoply" of remedies for workers subjected to unfair labor practices, including increased money damages for some workers who have been fired illegally.

Abruzzo, an appointee of President Joe Biden, said in a memo issued Wednesday that the board should strive to make workers whole for losses suffered as a result of unlawful conduct by employers using all of the tools at the NLRB's disposal.

Unions and worker advocates have often decried the relatively limited remedies that the NLRB is authorized to order under the National Labor Relations Act. The Protecting the Right to Organize (PRO) Act, a sweeping Democrat-backed proposal passed by the House of Representatives in March, would expand the available remedies to include punitive damages and double damages.

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In the meantime, Abruzzo said in the memo, regional staff should consider exploring non-traditional remedies that go beyond lost pay and benefits. That could include compensation for healthcare expenses incurred as a result of losing health insurance, or money to cover credit card late fees or the loss of a home or car that results from an unlawful discharge, she said.

Abruzzo in a statement said the board possesses broad discretionary authority to fashion remedies that fit the circumstances of each case.

"It is so important that we utilize every possible tool we have to ensure that those wronged by unlawful conduct obtain true justice," she said. "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."

Abruzzo in the memo said that in cases involving unlawful firings, regional staff should focus on ensuring that workers are restored as nearly as possible to the status quo prior to their discharge. That includes seeking consequential damages, front pay, and liquidated backpay, she said.

Abruzzo said she is also considering expanding remedies for when employers unlawfully refuse to bargain with unions to include compensation for losses workers incur as a result of that failure. She reiterated her request from an August memo for board staff to submit failure-to-bargain cases to her office for review.

Cases involving unlawful conduct committed during union organizing campaigns presents particular challenges with respect to remedies, Abruzzo said, because it is difficult to restore the "laboratory conditions" necessary for a free election in the face of threats, surveillance, and other coercive tactics.

In those cases, regional staff should consider seeking orders allowing unions greater access to workers and to employer bulletin boards and requiring employees to reimburse unions for costs incurred in re-run elections, according to the memo.

Abruzzo said her office would also seek orders requiring employers to notify workers about adverse NLRB rulings via text message and social media, rather than merely physically posting notices in workplaces.

Abruzzo said she plans to issue another memo soon setting forth the types of remedies that regional staff should incorporate into settlement agreements.

Read more:

New NLRB GC targets Trump-era rulings in priorities memo

U.S. House approves expanded protections for labor union organizing

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.