Tag Archive for: remedies

NLRB begins requiring negotiation schedules as remedies in mandatory bargaining cases

Continuing its expansion of remedies available under the NLRA, the NLRB has begun to mandate that employers schedule negotiation meetings with unions and even submit to the NLRB post-negotiation status updates. See for example the NLRB’s recent decisions in Crushin’ It LLC , Columbus Electric Cooperative, Inc. , and Amerigal Construction Co., Inc.

Here is an example of such language, taken from the Amerigal case:

REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord [*4] Burnett Construction Co., 149 NLRB 1419 , 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226 , 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964).

Further, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that is necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the information that it requested on July 26, 2022.

Additionally, the General Counsel requests that the Respondent be ordered to comply with a bargaining schedule requiring a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session, until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining. The General Counsel also requests that the Respondent be required to submit written bargaining progress reports to the Region and the Union every 15 days. As discussed above, the Respondent has unlawfully failed and refused to bargain with the Union for an initial collective-bargaining agreement despite the Union’s repeated requests to bargain over many months. In fact, the Respondent has failed and refused even to meet and/or to schedule any meetings to bargain since July 2022. It also has unlawfully failed and refused to furnish presumptively relevant information that goes to the core of the Union’s duties as the exclusive collective-bargaining representative of the unit employees. Given these circumstances, we find that a bargaining schedule requiring the Respondent to meet and bargain with the Union on a regular and timely basis is appropriate and would best effectuate the purposes of the Act. See Serenethos Care Center LLC d/b/a St. Christopher Convalescent Hospital, 371 NLRB No. 54 , slip op. at 2-3 (2022) (ordering employer to comply with a bargaining schedule to remedy its unlawful conduct), enfd. mem. NLRB v. Serenethos Care Ctr. LLC, No. 22-70014 , [2022 BL 67034], 2022 U.S. App. LEXIS 5285 (9th Cir. Feb. 28, 2022); All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2 (2011) (same), enfd. mem. 540 Fed.Appx. 484 (6th Cir. 2013). Accordingly, we shall order the Respondent, within 15 days of the Union’s request, to bargain for a minimum of 24 hours of bargaining per calendar month, for at least 6 hours per session until the parties reach agreement, lawful impasse, or an agreed-upon respite in bargaining. We shall also require the Respondent to submit written bargaining progress reports to the compliance officer for Region 5 every 15 days and to serve copies of those reports on the Union.

The General Counsel also requests that the Respondent be ordered to mail a copy of the notice to its unit employees because these employees are construction workers who work primarily at locations away from the Respondent’s facility. The General Counsel asserts that a notice mailing is necessary to ensure that all unit employees are informed of the Board’s order. We agree that this remedy is particularly appropriate to the work situation here and shall order the Respondent to mail a copy of the notice to all unit employees employed since July 26, 2022, when the Respondent began its unlawful conduct. See Bevilacqua Asphalt Corp.[*5] , 369 NLRB No. 96 , slip op. at 2 (2020) (ordering notice mailing where employer operated a quarry and asphalt plant and certain employees, particularly truckdrivers, did not regularly enter respondent’s office); Abramson, LLC, 345 NLRB 171, 171 fn. 3 (2005) (ordering notice mailing where unit employees worked on individual construction sites across a two-state region).4

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NLRB announces enhanced remedies in cases of repeat or egregious violations of the NLRA

In its continuing effort to impose enhanced remedies for violations of the NLRA by employers, the NLRB announced that it has expanded the remedies available in the event of repeat or egregious violations of the NLRA, which the NLRB has summarized in its press release, as follows:

  • Adding an Explanation of Rights to the remedial order that informs employees of their rights in a more comprehensive manner;
  • Requiring a reading and distribution of the Notice and any Explanation of Rights to employees, including potentially requiring supervisors or particular officials involved in the violations to participate in or be present for the reading and/or allowing presence of a union agent during the reading;
  • Mailing the Notice and any Explanation of Rights to the employees’ homes;
  • Requiring a person who bears significant responsibility in the Respondent’s organization to sign the Notice;
  • Publication of the Notice in local publications of broad circulation and local appeal;
  • Requiring that the Notice/Explanation be posted for an extended period of time;
  • Visitation requirement, permitting representatives of the Board to inspect the Respondent’s bulletin boards and records to determine and secure compliance with the Board’s order;
  • Reimbursement of Union’s bargaining expenses, including making whole any employees who lost wages by attending bargaining sessions.

This development was implemented by the Board in its recent decision entitled Noah’s Ark Processors, LLC D/B/A WR Reserve, which the Board summarized in its press release, as follows:

Applying these principles to the facts of the case, the Board upheld the Administrative Law Judge’s decision that the employer bargained in bad faith with the union and determined that—because the employer had also previously been found in violation of the Act, as well as in contempt of a U.S. District Court injunction ordering it to bargain in good faith—the employer’s open hostility toward its responsibilities under Act warranted a broad order and appropriate remedies. In addition to traditional remedies for refusal to bargain, such as rescission of unilateral changes and make-whole relief, and in addition to additional remedies ordered by the judge—including reimbursement of bargaining expenses and a reading of the Board’s notice to employees—the Board ordered: the addition of an Explanation of Rights to the remedial order, a bargaining schedule with written progress reports, reimbursement of the union’s bargaining expenses and earnings lost by individual employees while attending bargaining sessions, extended posting of the Notice and Explanation of Rights for one year, electronic distribution of the Notice and Explanation of Rights, mailing of the Notice and Explanation of Rights, reading of the Notice and Explanation of Rights in English and Spanish by the Respondent’s CEO or by a Board agent in the CEO’s presence, union presence at the Notice reading upon request, distribution of the Notice and Explanation of Rights to employees at the reading, and authorizing a Board agent to enter the Respondent’s facility for a period of one year at reasonable times for the purpose of determining whether the Respondent is in compliance with its posting and mailing requirements under the Board’s order.

As previously noted, the Board’s continuing efforts to expand remedies available under the NLRA is likely to draw continued litigation and appeals.

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NLRB permits consequential damages as possible remedies

In follow-up to the prior post regarding NLRB General Counsel Memorandum 21-06, the Board has authorized the award of at least some no previously recognized remedies under the NLRA. The case was Thryv Inc. The Board did not specify particular aspects of relief, saving that for lower decisionmakers in particular cases. Without calling them “consequential damages,” which is a commonly used legal term, the Board held in this 3-2 decision that these new remedies would be available if the monetary losses were the “direct and foreseeable result of a respondent’s unfair labor practice.” The majority did take pains to note that these new remedies would not include “pain and suffering” or other emotional distress.  As with the NLRB General Counsel Memorandum, the Board’s ruling is likely to draw litigation on review.

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NLRB General Counsel pushes for enhanced remedies under NLRA

In NLRB General Counsel Memorandum 21-06, the NLRB General Counsel has ordered Board offices to seek remedies never before recognized as available under the NLRA, including the following, each subject to circumstances described in the Memo:

  • Enhanced consequential damages
  • Including even front pay
  • And reimbursement of union organizing costs
  • Mandating hires
  • Lost wages to individuals not authorized to work in the United States.

Attempts to seek those not previously recognized remedies are sure to be subject to litigation, including over the constitutionality of the General Counsel’s office ability to expand the NLRA without congressional legislation or even regulatory rulemaking.

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Tenth Circuit takes expansive view of remedies available in Title VII claims

In a recent decision, the Tenth Circuit took an expansive view of the remedies available to a plaintiff in a Title VII claim, including on the following points of law:

  1. The court held that reinstatement is the strongly preferred remedy, instead of front pay. Often in cases, especially after the tribulations of a trial, courts have been prone to enter a monetary award of front pay, rather than ordering that the employee be re-hired, but the Tenth Circuit held that reinstatement should be the “preferred remedy” and should be ordered absent “extreme hostility” between the parties. Whether extreme hostility exists should be gauged by asking whether there are “objective” reasons that would make it “unworkable.” Objective reasons do not depend on the parties’ own subjective feelings, especially not the defendants’. For example, in the case before it, the court rejected as “far short” of sufficient the defendants’ argument that the litigation tactics employed by the plaintiff and their attorney in the case had been “unfair.” Likewise coworker dislike of the plaintiff is not generally enough to establish “extreme hostility,” nor is management’s “speculating in general and conclusory manner” that the plaintiff would not be welcomed back.
  2. The court clarified that an order of reinstatement does not block an award of front pay. Since back pay is awarded for the period of time from wrongful termination until judgment is entered, front pay should be awarded for the gap going forward between the period of time starting with the entry of judgment until reinstatement.
  3. The court held that, when determining the proper remedy, a plaintiff’s award should not be docked for failure to mitigate if the plaintiff turned down work that was not “substantially equivalent.” While the defendant need not prove the plaintiff turned down a job that was “virtually identical,” the defendant must at least prove the turned-down job was “substantially equivalent,” in order to terminate liability for lost pay and reinstatement.
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Courts are limited to granting relief that will personally benefit plaintiff

The Eleventh Circuit held that courts are limited, in Title VII cases (the federal statute that governs most discrimination and retaliation cases, including related to race, color, religion and sex), to granting relief that personally benefits the plaintiff. In this case, the plaintiff a former employee proved a violation but no damages. Instead, the trial court awarded her an injunction requiring the defendant to clean her personnel file and further to implement a training program. The Eleventh Circuit held the training-program requirement went too far because training would not benefit the plaintiff, a former employee.

In a separate unpublished opinion, the Eleventh Circuit remanded the case for the trial court to determine if the plaintiff was still the “prevailing” party eligible to recover attorney fees, especially since she had apparently rejected a higher settlement offer.

Source: Furcron v. Mail Centers Plus, LLC, case no. 187-12598 (11th Cir. 6/12/19) and

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Employers in New York City face potential for greater punitive damages

The New York Court of Appeals ruled in Chauca v. Abraham that employers face greater exposure for punitive damages under New York City’s anti-discrimination laws than under the federal anti-discrimination law known as Title VII.

The Court observed that existing law mandates that New York City’s law be “as a floor below which the City’s Human Rights Law cannot fall, rather than a ceiling above which the local law cannot rise.”

The Court then noted that New York City’s law is worded differently and, as such, it “requires neither a showing of malice or awareness of the violation of a protected right.” This means a lower standard than Title VII. However, the Court cautioned the standard should not be so low that punitive damages are available whenever a violation is proven warranting compensatory damages.

Punitive damages represent punishment for wrongful conduct that goes beyond mere negligence and are warranted only where aggravating factors demonstrate an additional level of wrongful conduct (see Home Ins. Co., 75 NY2d at 203-204 ). Accordingly, there must be some heightened standard for such an award.

As a middle ground, the Court articulated a new standard for punitive damages under New York City’s law: The plaintiff must prove “the wrongdoer has engaged in discrimination with wilful or wanton negligence, or recklessness, or a ‘conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.'”

A dissenter disagreed arguing the majority had set the bar too low. The dissenter would have allowed punitive damages “whenever liability is proved, unless an employer has adopted and fully implemented the antidiscrimination programs, policies, and procedures promulgated by the Commission on Human Rights, as an augmentation to compensatory damages, and would answer the certified question accordingly.”

Source: https://www.bloomberglaw.com/document/X1OFI9SU0000N?

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