NLRB Adopts Pro-Labor Remedies for Alleged Unfair Labor Practices, Part I

06/29/22 • 16 min

Husch Blackwell's Labor Law Insiders, Thomas Godar, Terry Potter, Rufino Gaytan and Adam Doerr, offer context to recent NLRB memoranda, including background to NLRB remedies, and contrast the historical reach of NLRB remedies to the broader approach urged by the Board’s General Counsel under her more expansive definition of “full remedies”. Further, the panelists take on the implications of the General Counsel’s pursuit of injunctive relief under Section 10(j) of the National Labor Relations Act, as a preventative tool rather than a remedial one.

The panel also addresses the non-economic remedies that more employers will find unpalatable, including those discussed in the most recent General Counsel memorandum. These include such remedies as letters of apologies to reinstated employees, and the creation of video recordings of a NLRB agent reading notices in the presence of senior charged party officials, among others.

The second part of this episode will further explore the options for reviewing and potentially resolving complaints, the incentive to defend against such ULP complaints through trial, and the steps to be undertaken to avoid, as far as can be possible, the threat of employees charging employers with unfair labor practices.

Previous Episode

Project Labor Agreements Part II

On May 13, 2022, we released Part One related to President Biden’s Executive Order 14063 mandating Project Labor Agreements (“PLA”). Our Labor Law Insiders, Tom Godar, Rufino Gaytán and Michael Schrier, began to explore the requirement that contractors and sub-contractors on large federal construction contracts “negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”

In Part Two of this discussion regarding the impact of the Executive Order, we explore how this requirement of PLAs for construction agreements greater than $35 million may indeed be another avenue that unions might use to organize construction employees. Our Insiders tackle the potential use of publicly available information mandated under the new PLA regulations, and how, in combination with wages dictated by the Davis-Bacon Act, unions might identify and target union-free employers for organizational activity. This disclosed information may be one more helpful piece of information for unions, courtesy of the Biden administration and its effort to be the most union-friendly administration ever.

The guests also explore when we might expect publication of the regulations, and how they might resemble or differ from those already in place under the current Obama-era PLA Executive Order. The Federal Acquisition Regulation Council may issue such new regulations as soon as June 4th of this year.

Importantly, attorneys Gaytán and Schrier will discuss possible legal challenges to these regulations, as well as cautions for those non-union entities who might seek the benefit of large government contracts and in so doing, become entangled in the PLA’s with various unions. For contractors inexperienced in such matters, engaging in PLA work may have hidden trap doors wholly apart from potential union entanglement for union-free companies.

We invite you to listen to this interesting presentation, not only for the specifics of the PLA impact, but to assess the breadth of impact that a seemingly simple expansion of regulations can have on both union and non-union federal contractors alike.

Next Episode

NLRB Adopts Pro-Labor Remedies for Alleged Unfair Labor Practices, Part II

The National Labor Relations Board, primarily through its General Counsel, Jennifer Abruzzo, has initiated a course of seeking increasingly stiffer remedies from employers who are either found to have committed an unfair labor practice, or even for those who are subject to an unfair labor practice complaint and are merely seeking to resolve the complaint through negotiation with the National Labor Relations Boards (NLRB) agent. As discussed in Part I of this Labor Law Podcast series on remedies, the General Counsel issued two memos (General Counsel memo 22-02 and General Counsel memo 21-07) admonishing the regions to seek even more inclusive remedies, as well as instructing the Regional Directors to initiate the federal court process for injunctive relief earlier in the process and perhaps more frequently than had been the case earlier.

Husch Blackwell's Labor Law Insiders Tom Godar, Terry Potter, Adam Doerr and Rufino Gaytán continue the discussion, and review the NLRB’s more aggressive posture for 10(j) injunctive relief, which must be granted by federal courts. In addition, the discussion reviews the potential impact of tougher remedies, including the incentive for employers to litigate more often since they gain very little relief from a settlement when the Board is seeking full remedies. This reluctance to settle a charge might be even greater given the Board’s insistence that employers publicly record and distribute a notice admitting to the alleged violations of the Act, or even apologize to workers if the Board concludes that they were subject to discrimination based on their protective and concerted activities.

The Labor Law Insiders emphasize that employers should take appropriate steps to avoid, or at least minimize, the likelihood that an unfair labor practice (ULP) claim will be filed. Our panel suggests that there must be a renewed emphasis on training supervisors and communicating effectively and with transparency with employees. In addition, employers should review handbooks and other policies that might invite the Board’s scrutiny as it seeks to reverse Trump-era decisions and expand its interpretation of employee and union rights, especially as it relates to work rules pertaining to social media use and other employee communications. In addition, review by counsel of actions that might result in employee discipline or discharges is essential, given the greater risks and costs of facing a ULP charge.

Even while this podcast was being recorded, the General Counsel issued still another remedies memo (General Counsel memo 22-06), which celebrates and advocates for very harsh remedies for alleged ULPs. In addition, the Board is seeking broad remedies related to some of the hundreds of Starbucks organizing efforts, including bargaining orders as opposed to new elections, when it believes that employees’ rights to participate in an election have been violated. Those developments are the focus of a special third part to this Insider podcast series, featuring attorney Terry Potter. Terry draws on his experience and expertise to describe these changes and the further impact they have upon employee, union and employer behavior. Stay tuned for Part III of this series, which will be released very soon.