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NLRB encourages regional offices to thoroughly pursue make-whole relief

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The National Labor Relations Board in an April 8 memo urged NLRB staff to seek make-whole relief remedies for all employees “harmed as a result of an unlawful work rule or contract term” — whether or not those workers were identified during the unfair labor practice investigation.

Affected employees are not made whole just because an “overbroad, unlawfully promulgated or unlawfully applied” rule or term of the contract was rescinded, Abruzzo said; instead, there’s a remaining “chill” that “fails to adequately remedy the harm caused by the unlawful provision.”

The Board’s failure to pursue make-whole relief in these cases creates an “unwarranted disparity” when considering its approach in cases involving unilateral changes, Abruzzo pointed out. In such cases, the Board regularly orders employers to expunge any disciplinary action, on top of rescinding unlawful work rules — even if the disciplinary action wasn’t mentioned as a National Labor Relations Act violation.

Additionally, Abruzzo emphasized that regional Board members should “seek and obtain” further information from the employer regarding whether an employee was disciplined during settlement efforts. 

For cases that don’t get settled, Abruzzo instructed regional staff to reach out to the national board to ensure that employees can “obtain expungement and backpay in compliance” with remedying the unlawful rule.

Initially, the memo outlined and acknowledged that much of the regional progress has come from remedying the unlawful discharge of union organizers.  

The memo outlined examples of make-whole relief, including:

  • Unreimbursed sales and marketing costs to further an employer’s brand
  • Gas, rideshare service, resume printing and similar costs incurred from the job search
  • Late fees and/or accrued interests regarding rent, utilities, mortgage, tax, auto loans and credit cards
  • Utility disconnection and reconnection fees
  • Increased cost of health insurance premiums, copays, deductibles or coinsurance
  • Loss of retirement fund contributions
  • Penalties for early retirement fund withdrawals
  • Legal representation costs in eviction proceedings

The general counsel’s memo reaffirmed that should workers face unlawful employer action, particularly that which violates the NLRA, regional officials should pursue multiple avenues of make-whole relief — for which employers will be responsible.

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