On July 28, the NLRB Office of the General Counsel issued a memo to all regions significantly changing the process for determining remedies in unfair labor practice cases. The typical “make whole” remedy would involve reinstatement to work along with payment for lost wages and benefits. The scope of additional items the Board will focus on in future awards just grew much wider.
Here is the new complaint language as outlined in the memo:
“In order to fully remedy the unfair labor practices set forth above, the General Counsel seeks an order requiring that the employees be made whole, including, but not limited to, payment for consequential economic harm they incurred as a result of the Respondent’s unlawful conduct.”
The memo goes on to give examples of such indirect consequential economic harm:
In order to ensure that appropriate remedies are obtained, Regions have been instructed to seek reimbursement for consequential economic harm incurred as a result of a respondent’s
unlawful conduct (for example, expenses resulting from car repossession due to failure to make a car payment, penalties for early withdrawal from retirement accounts in order to cover living expenses, and loss of home equity in foreclosure action due to missed mortgage payments).
For example, if an employee is unlawfully terminated and is unable to pay his or her mortgage or car payment as a result, that employee should be compensated for the economic consequences that flow from the inability to make the payment: late fees, foreclosure expenses, repossession costs, moving costs, legal fees, and any costs associated with obtaining a new house or car for the employee.
Similarly, employees who lose employer-furnished health insurance coverage as the result of an unfair labor practice should be compensated for the penalties charged to the uninsured under the Affordable Care Act and the cost of restoring the old policy or purchasing a new policy providing comparable coverage, in addition to any medical costs incurred due to loss of medical insurance coverage that have been routinely awarded by the Board.
Regions are also encouraged to continue to search for other appropriate remedies that address the allegations in the complaint. While the sweeping policy changes made by the Board like ambush elections may be over, the degree of change aimed at increasing employer costs and eroding management rights is still alive and well.
(h/t to John Raudabaugh)