NLRB To Pursue Additional Remedies for Victims of Unlawful Conduct
In a recent memorandum from General Counsel Jennifer Abruzzo, GC 24-04, the National Labor Relations Board (“NLRB”) signaled that it will aggressively pursue full make-whole remedies for all employees harmed by an employer’s unlawful conduct. Under this approach, the NLRB will not only require employers to remove unlawful work rules and contract terms but will also seek to address the lingering effects of the rule or term in the workplace. While the NLRB has traditionally taken this approach in unilateral change and retaliation cases, Abruzzo’s memo urges the NLRB to make affected employees whole in all contexts and represents a significant development in federal labor law enforcement.
In her memorandum, Abruzzo highlights that the chilling effect of an unlawful contract term or work rule can linger even after the unlawful term or rule is rescinded, particularly where the employer has enforced the unlawful policy by disciplining employees. In order to fully address the impact of the employer’s violation, remedies should both require that the employer rescind its unlawful policy and reverse any related disciplinary actions against employees.
Abruzzo’s memorandum directs the NLRB’s Regions to seek these remedies on behalf of all harmed employees, even those not identified during the course of an unfair labor practice investigation. The memorandum directs the Regions to seek and obtain information on previously unidentified employees during settlement negotiations. In cases that do not settle, Abruzzo directs the Regions to allow affected employees to obtain expungement and backpay in compliance proceedings.
GC 24-04 is a continuation of the NLRB’s ongoing efforts to pursue comprehensive remedies on behalf of employees affected by unfair labor practices. The memorandum expands upon these efforts by directing Regions to address not only the employer’s unlawful policy, but also the residual effects of that policy’s enforcement in the workplace.
If you have any questions about the NLRB’s ongoing pursuit of comprehensive remedies, please contact your usual labor law counsel.