Michael F. McGahan and Daniel R. Simandl, attorneys in the Employment, Labor & Workforce Management practice, in the firm’s New York and Chicago offices, respectively, co-authored an article in the June edition of Bender’s California Labor and Employment Bulletin, titled “NLRB General Counsel Seeks to Expand Use of Special Remedies.”

Following is an excerpt (see below to download the full version in PDF format):

The General Counsel for the National Labor Relations Board (the “Board”), Jennifer Abruzzo, recently directed regional offices of the Board to seek special remedies in a broad array of unfair labor practice charges. In a memorandum issued by General Counsel Abruzzo on September 8, 2021, Regional Directors were given wide latitude to seek special remedies against employers for unfair labor practices, even in circumstances previously excluded from the reach of special remedies.

Historically, the imposition of special remedies was reserved for employer conduct considered so serious and extensive that imputable actions were assumed to have long-term coercive effects on employees. These extraordinary remedies have included, but were not limited to: public reading of a notice by a high-ranking employer official to impacted employees; provision of employee names and address to the union upon request, for an extended period of time; allowing a union access to employer bulletin boards; giving a union access to employer captive audience meetings and providing it with equal time to address employees; mailing copies of a notice to all employees on the employer’s payroll not just those affected by the unfair labor practice; publishing the notice in a local newspaper; along with myriad of traditional bargaining remedies that are often used in first contract cases. Moving beyond the Board’s practice, General Counsel Abruzzo called for the Regions to invoke “the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices”, including “new and alternative” special remedies.

Since her appointment on July 21, 2021, General Counsel Abruzzo has wasted no time taking an aggressive approach to her responsibilities setting the Board’s litigation and enforcement agenda. With President Biden’s election and subsequent new appointments to the Board, the five-member Board itself transitioned from a 3-2 Republican majority to that of a 3-2 Democratic majority, providing the new Board the ability to act affirmatively on the agenda set by General Counsel Abruzzo.

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