NLRB Outlines Remedies for Egregious Misconduct

​The National Labor Relations Board (NLRB) recently clarified that extraordinary remedies, including reimbursing expenses associated with bargaining, are available for repeated or egregious misconduct. We've gathered articles on the news from SHRM Online and other outlets.

Extraordinary Remedies

The board provided that extraordinary remedies include:

• Adding a notice and explanation of rights to remedial orders that comprehensively inform employees of their rights.
• Requiring a reading of the notice to employees, including possibly requiring the participation of managers or supervisors at the reading.
• Mailing the notice to employees' homes.
• Requiring that an official of the employer sign the notice.
• Publishing the notice via local media.
• Extending the period that the notice must be posted.
• Granting board staff access to visit the employer's facilities and access compliance.
• Reimbursing bargaining expenses, including making whole any employees who lost wages due to their attendance at bargaining sessions.

In a statement given after the agency's 2-1 ruling, NLRB Chairwoman Lauren McFerran said that the National Labor Relations Act (NLRA) "gives the board broad discretion to exercise its remedial authority, and it can and should tailor the remedies to the violations, including to their nature, severity and extent."

Dissenting NLRB Member Marvin Kaplan said it "seems likely that extraordinary remedies are about to become far less extraordinary."

(Lexology, via Benesch, a member firm of TerraLex)

Employer Found to Have Bargained in Bad Faith

Applying these principles to the facts before it, the NLRB upheld an administrative law judge's decision that the employer bargained in bad faith with the union. The board determined that because the employer had also previously been found in violation of the act, as well as in contempt of a district court order for it to bargain in good faith, the employer's conduct warranted a broad order and remedies beyond traditional ones.

(NLRB news release)

Expansion of Remedies

The ruling was in line with the trend of boosting the NLRB's power to punish and deter violations of the NLRA. While the board cannot assess penalties, such as fees, or award punitive damages, the board can make aggrieved parties whole. The NLRB's general counsel made clear at the outset of her appointment that she would pursue cases to expand remedies for violations of the NLRA.

(Littler)

NLRB Already Broadened Potential Remedies for Unfair Labor Practices

In a prior decision, the NLRB ruled on Dec. 13, 2022, that employers that violate federal labor law must compensate workers to make up for the direct consequences of unfair labor practices. This ruling added consequential damages to the board's usual make-whole remedies. The board said it would apply this remedy retroactively to all pending cases.

(SHRM Online)