Ever since the 2020 presidential election last November, we have forecasted what a President Biden-appointed National Labor Relations Board (NLRB) and General Counsel would mean for our employer clients. For example, the NLRB stated in an August opinion that it was willing to “explore new make-whole remedies.” In near lock step with the NLRB, General Counsel Jennifer Abruzzo recently revealed her playbook in the form of General Counsel Memorandum 21-06, which spells trouble for employers who are charged with unfair labor practices by an employee or a union.
In recent memory, the typical remedies imposed by the NLRB on an employer were not harsh. If you failed to bargain in good faith, you were ordered to do so. If you disciplined an employee for talking about his or her wages and conditions at work, you were ordered not to do so. If you fired a union adherent unlawfully, you reinstated him or her and paid the back pay owed. While workplace postings of violations can be distasteful to employers, their consequences fall short of being severe. As such, traditional remedies have not been very onerous and savvy employers used the lack of real economic impact that a remedy may have as a tool in dealing with their labor opponents.
The same joie de vivre enjoyed by employers will not last. General Counsel Abruzzo is taking an entirely different approach and will lead the NLRB in their combined exploration of new remedies. The General Counsel promises five basic areas where...
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