In a recent memo released by Jennifer Abruzzo, the new General Counsel (GC) of the Biden NLRB, puts the focus on Section 10(c) of the Act. This section of the Act addresses penalties for unlawful labor practices. The new GC aims to broaden the remedies available to employees who file an unfair labor practice with the Board. The suggested changes in remedies raises the stakes considerably for Employers. This not-so-veiled action seeks to accomplish through bureaucracy what union supporters could not achieve through legislation. Abruzzo’s memo attempts to enact one of the most egregious provisions of the failed PRO Act, increased penalties and even fines for employers charged with unfair labor practices, despite the fact that the legislation has been rejected by Congress on several occasions.
Abruzzo – Injunction, Reinstatement, and Fines
Abruzzo’s advised Regional Directors to seek injunctions forcing reinstatement of discharged workers before any determination on validity of the termination. This puts an employer in the untenable position of discharging an employee properly, a court forcing reinstatement and backpay, and a judge ultimately in its favor. Abruzzo’s memo also advises the Regions seek “other remedies.” While it is unclear what “other remedies” entails, the PRO Act included fines for unfair labor practice – some as high as $100,000.00 per charge!
Campaign Concerns
Many charges against employers filed with the Board stem from conduct by employers during a union election campaign. The General Counsel has asked the Board to broaden the remedies available to charges filed during election campaigns. The remedies sought include union access to expanded employee contact information, union representation at mandatory staff meetings, and reimbursement of union organizational costs should the Board find the employer committed “especially egregious acts”.
Bargaining Land Mines
If employees vote to unionize, the company’s loss triggers an obligation to collectively bargain with the union. As a result, charges alleging violations of Section 8(a)(5) of the Act are a common weapon in the union’s arsenal to secure the acquiescence of the employer. These charges can be bad faith bargaining, refusal to furnish information, and unilateral changes.
Abruzzo is seeking a broader list of remedies for violations of the Act during bargaining. She directed the Regional Offices to force submission of periodic progress reports, reimbursement of union bargaining expenses, and cease-and-desist orders for behavior not yet litigated as unlawful.
Action plan for Employers
In an election campaign, NLRA works to turn the tide and erode union support as quickly as possible. The goal – force the union to withdraw its petition for lack of support. Our mantra to our clients – “You can’t lose a vote you don’t have”.
The same remains true with this new focus on metering out heavy punishments to employers found to be in violation of unfair labor practices. “You can’t be punished for actions you did not take.” Make no mistake Abruzzo’s office overstepped in this memo. It is likely that a U.S. Court of Appeals rules the enhanced remedies unlawful. However, a court challenge will take years and an impressive legal war chest from whomever takes up that gauntlet. For those who don’t have years, or a giant pile of unspoken for cash, the best strategy – avoidance. Seek expert advice before engaging in behaviors that lead to, or may potentially, lead to unfair labor practice charges. NLRA has you covered and our expert advocates are available to assist you. Reach out anytime.
