The UFCW’s Legal Department recently filed an amicus (“friend of the court”) brief with the NLRB, urging the board to consider novel and strong remedies that would deter bad employers from misconduct.
In Thryv, Inc. and International Brotherhood of Electrical Workers, Local 1269, Cases 20-CA-250250 and 20-CA-251105, the National Labor Relations Board solicited briefs from interested parties, including unions, regarding whether the board should reconsider the sort of remedies it orders in unfair labor practice (ULP) cases. The board limited its request to whether it should expand the monetary remedies it awards when an employee is wrongfully terminated for protected activity to go beyond back pay and reinstatement and include other losses that were a direct and foreseeable result of the employer’s unfair labor practice. The board is barred by the National Labor Relations Act from awarding punitive monetary damages that go above and beyond the actual harm suffered by the employee. Currently the board essentially limits its remedies in termination cases to reinstatement, back pay, and some specific other costs, such as healthcare and costs associated with interim employment.
Stories from UFCW Locals confirmed the UFCW’s experience: the employers UFCW typically encounters are often able to seriously hinder an organizing effort without ever firing a worker. They also showed that in the face of insufficient remedies from the board, employers have little incentive to cease committing ULPs and bargain in good faith with the union but instead will engage in the same intimidation and interference in other bargaining units.
The Legal Department’s brief encouraged the board to adopt the broader monetary relief it was considering, citing a recent example from UFCW Local 655 of a worker who was terminated after the organizing campaign and lost their home to foreclosure. Given the UFCW’s experience with recalcitrant employers who repeatedly interfere with workers’ rights to engage in protected activity, the Legal Department urged the board to order more expansive, non-traditional remedies and to prioritize deterrence as it determines the appropriate remedy in each case. The Legal Department’s brief also cited examples from UFCW Local 455 about Kroger unilaterally implementing cancelation of automatic dues checkoff to deprive the bargaining unit of its resources, and action Kroger and its subsidiaries have now taken or threatened to take in other states, as well, and from UFCW Local 293 about Noah’s Ark Processors refusing to bargain in good faith despite being ordered to pay the union’s bargaining costs.
In light of the NLRB’s invitation to file briefs in this case and the NLRB General Counsel’s Memorandum GC 21-06 (September 8, 2021), local unions and their counsel should request NLRB Regional Offices to seek creative, non-punitive remedies that would provide a strong deterrent to future violations in appropriate ULP cases.
Local unions are empowered to introduce evidence supporting remedies other than those sought by the General Counsel, as long as those remedies are consistent with the General Counsel’s theory of the case. Local unions should not limit themselves to the remedies that the NLRB Regional Offices recommend.