The Biden NLRB

Understanding the New NLRB General Counsel Memo on Remedies

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected]

Today, the National Labor Relations Board’s General Counsel, Jennifer Abruzzo, released a highly relevant and impactful memo on the office’s intent to seek a rather stunning new array of remedies in unfair labor practice cases. As I wrote about the last GC memo, if the Board does a fraction of the things Abruzzo calls for in this new memo, she’ll be one of the most consequential GC’s in NLRB history. It’s no overstatement to say that this memo calls for a complete overhaul of NLRB remedies – at least those feasible without Congressional action. It would go a significant distance toward fixing one of the (though certainly not all of the) major flaws in the current NLRA regime: it’s remedial toothlessness.

The memo is short, containing mainly a list of the recommended remedies. Some of the highlights include the following directions to the NLRB regions:

  • In cases involving discriminatory discharges, the GC writes that “it is critical that Regions avail themselves of all remedial tools to ensure discriminatees are restored as nearly as possible to the status quo they would have enjoyed but for the unlawful conduct. In furtherance of that aim, Regions should seek compensation for consequential damages, front pay, and liquidated backpay.” This could include things like “compensation for health care expenses that an employee may incur as a result of an unlawful termination of health insurance, or compensation for credit card late fees incurred or for loss of a home or a car that an employee suffers as a result of an unlawful discharge.”
  • In cases where an undocumented worker is fired in violation of the Act, Regions are to seek “compensation for work performed under unlawfully imposed terms (such as work performed under an unlawfully reduced pay rate), employer sponsorship of work authorizations, and any other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers.” This last remedy includes “ordering payment by an employer of backpay equivalent to what it would have owed an undocumented discriminatee and that such backpay could be paid into a fund to make whole discriminatees whose backpay the Board had been unable to collect.”
  • Where unlawful employer conduct occurs during an organizing drive, Regions should seek inter alia the following remedies: union access including equal time to address employees (!), reimbursement of union organizing expenses, an order requiring the employer to read the Board’s remedial notice to employees (in addition to posting the notice on websites, social media, and sending via text and email), and “instatement of a qualified applicant of the union’s choice in the event a discharged discriminatee is unable to return to work.” (On the little-used but potentially critical remedy of notice reading, Andy wrote this post and I this law review article on the subject.)
  • In bargaining cases, the GC reiterates her recommendation that Regions submit cases to advice on the applicability of Ex-Cell-O Corp. so the Board can revisit the question of make-whole remedies. Among other additional remedies Regions are to seek, Abruzzo calls on them to order reimbursement of bargaining expenses in cases of bad-faith bargaining.

I’ve listed here a small subset of what’s in the remarkable and inspiring memo. Anyone interested in the development of labor law should take a look.

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