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Biden's NLRB: Tough on Union Busting

Trump's Business friendly NLRB replaced, Biden's targeting bad employers

Brian Young's picture
Sep 17, 2021

When Joe Biden was running for President, he talked about wanting to create real penalties for companies that violate labor law. While he suggested that he might support going as far as putting them in jail, a more likely scenario has always been hitting them in their bank accounts and increasing penalties so that businesses feel the pain of union-busting and violating labor law.

On September 8th, new NLRB General Counsel Jennifer Abruzzo began to put this into practice when she issued a memo called “Seeking Full Remedies.” The memo was sent to the 26 regional offices and urged them to pursue a “full panoply” of remedies to help the victims of these labor violations.

Currently, NLRB remedies include monetary remedies like collecting back pay, and/or employee reinstatement to achieve the status quo without the employer having to pay any penalties. However, Abruzzo is authorizing the regions to now seek some new remedies for the victims of these crimes. These new remedies include seeking compensation for “consequential damages, front pay, and liquidated backpay.” For workers subject to unlawful firings as a result of being undocumented, the memo instructs the regions to seek compensation for work performed under unlawfully imposed terms (i.e. work performed under unlawfully reduced pay rate), employer sponsorship of work authorizations, and other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers. In a subsequent memo, Abruzzo ordered the regions to seek full relief through settlements with employers instead of settling for pennies on the dollar.

Abruzzo also said that she is considering remedies to compensate workers for losses they sustained due to an employer’s refusal to bargain. This means financial penalties that might make it significantly less cost-effective to try and delay a new contract with the hopes of pushing a decertification election. She also encouraged the regions to seek broad remedies for employers that refuse to bargain including establishing a bargaining schedule, submission of bargaining progress reports to the agency to keep them up to date on the status of bargaining, the reimbursement of bargaining costs to the union, and she also gave the regions broad power to issue cease-and-desist orders.

Abruzzo also said that she is continuing to consider ordering Joy Silk orders. As UCOMM previously reported, these orders could be issued at workplaces where the union can provide evidence that a majority of employees have signed union cards. Under a Joy Silk order, the employer would then be required to recognize and bargain with the union or explain to the board why they believe the cards do not meet the threshold for card-check recognition. Essentially a Joy Silk order would mean that companies would be required to meet the card-check threshold instead of forcing a secret ballot election.

Abruzzo is also ordering regions to actively seek Gissel bargaining orders whenever employers commit unfair labor practices in the lead-up to a union election. A Gissel order is given when an employer violates the law in the lead-up to an election and allows the union to skip the election while forcing the company to begin bargaining on the first contract. This means that if a company wants to try and bust a union during an election, as Amazon did in Alabama, they would be playing with fire because if they are caught their workplace will automatically become union.

The memo also addressed new remedies for workers who face unlawful conduct during a union campaign. The non-exhaustive list includes giving the union access to employees and contact information, reimbursement of organizational costs, and reading of the remedial Notice to Employees and Explanation of Rights by a principal or board agent to employees, supervisors, and managers, with union representatives present.

The NLRB may also get help from Congress in their fight to go after bad employers. In a recent proposal to be included in the $3.5 trillion reconciliation bill, Congressional Democrats have included a plan to issue “hefty fines” on union-busting employers. Their plan would increase monetary penalties for certain wage violations under the Fair Labor Standards Act. The bill would also amend the NLRA to prohibit employers from permanently hiring scabs to replace striking workers and would ban provisions that force workers to forego class action lawsuits against employers.

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