NLRB General Counsel Directs Regional Offices to Expand Remedies Sought in Unfair Labor Practice Cases | Practical Law

NLRB General Counsel Directs Regional Offices to Expand Remedies Sought in Unfair Labor Practice Cases | Practical Law

The National Labor Relations Board (NLRB) has issued General Counsel Memorandum GC 21-06, advising all regional offices to expand unfair labor practice (ULP) remedies.

NLRB General Counsel Directs Regional Offices to Expand Remedies Sought in Unfair Labor Practice Cases

by Practical Law Labor & Employment
Published on 13 Sep 2021 • USA (National/Federal)
The National Labor Relations Board (NLRB) has issued General Counsel Memorandum GC 21-06, advising all regional offices to expand unfair labor practice (ULP) remedies.
On September 8, 2021, in General Counsel Memorandum GC 21-06, the NLRB General Counsel advised Regional Offices to seek the full array of remedies to address unfair labor practices (ULPs). For example, the General Counsel urged Regional Offices that:
  • In cases involving unlawful firings, Regions are to seek:
    • compensation for consequential damages;
    • front pay; and
    • liquidated backpay.
  • Where undocumented workers are unlawfully fired, Regions are to seek:
    • compensation for work performed under unlawfully imposed terms;
    • employer sponsorship of work authorizations; and
    • other remedies that would prevent an employer from being unjustly enriched.
  • In cases involving unlawful conduct committed during a union organizing drive, Regions are to seek various remedies, such as:
    • union access to employees and contact information;
    • reimbursement of organizational costs;
    • reading of the Notice to Employees and Explanation of Rights by an employer principal or NLRB agent to employees, supervisors, and managers, with union representatives present;
    • distribution of video-recorded Notice to Employees and Explanation of Rights readings; and
    • postings on social media, local newspapers, and online publications.
  • In cases involving unlawful failures to bargain, Regions are to seek various remedies, such as:
    • bargaining schedules;
    • submission of progress reports to the NLRB on bargaining status;
    • reimbursement of collective bargaining expenses; and
    • broad cease-and-desist orders.
  • In cases involving employers refusing without a good faith doubt as to majority status to recognize and bargain with a union when presented with evidence of a card majority, Regions are to seek Gissel bargaining orders while the NLRB General Counsel considers guidance for seeking Joy-Silk-type bargaining orders and further make-whole remedies (see NLRB v. Gissel Packing Co., 395 U.S. 575 (1960); Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949), enforced as modified 185 F.2d 732 (D.C. Cir. 1950)).
The General Counsel also noted that she soon intends to issue another memorandum concerning remedies that must be incorporated into settlement agreements.
The practical implications of this memorandum are that employers should expect the NLRB:
  • To seek a broader array and more severe types of remedies to ULPs than it has in recent years.
  • To expand the types of cases to which it applies its most burdensome remedies.
  • To demand broader and more severe remedies as part of NLRB settlements of ULP cases.