May 28, 2023

Volume XIII, Number 148


May 26, 2023

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May 25, 2023

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NLRB General Counsel Seeks Quicker Compliance with Board Orders

In yet another effort to speed up the processing of cases, the National Labor Relations Board (NLRB) general counsel on May 22, 2023, issued a memorandum instructing Regional Offices to speed up compliance with Board-ordered remedies in labor cases.

Quick Hits

  • A new NLRB general counsel memorandum instructs Regional Offices to seek prompt compliance with Board orders providing remedies to a statutory violation.

The memorandum from the NLRB general counsel stated that “upon the issuance of a Board order that provides for a remedy of a statutory violation,” Regional Offices will “promptly send a written communication” with a “short deadline period” for a respondent to reply with its intent to comply with or challenge the Board order.

According to the memorandum, if the respondent indicates a willingness to forgo further challenge or an intent to comply, the matter will quickly move into the compliance stage. Alternatively, if the respondent indicates, “through a response or public statement” that it “has no intention of complying,” or fails to respond by the deadline, the Regional Office will submit a recommendation to the Board’s appellate branch for enforcement in federal court under Section 10(e) of the National Labor Relations Act (NLRA). The general counsel pointed out in a footnote, that Section 10(e) authorizes a court of appeals to enforce the Board’s order or to issue “appropriate temporary relief or restraining order.”

The memorandum comes as the general counsel has been pushing to expand potential remedies in labor cases. The Board issued a decision in December 2022 that held that as part of seeking make-whole remedies, victims of an unfair labor practice should be compensated “for all direct or foreseeable pecuniary harms suffered,” arguably pushing beyond its statutory limits of what is recoverable in an unfair labor practice (ULP) case.

Before that decision, the general counsel had ordered regions to seek “full remedies” in negotiated settlement agreements, including reimbursement for credit card late fees and for the loss of a home or car for failure to keep up with loan payments.

Next Steps

While this directive will only impact a narrow population of respondents in ULP matters, employers with a case before the Board should expect that matter to move forward quickly following the Board’s issuance of an order with remedies. The recent McLaren Macomb decision was an example of this quick turnaround. The Board issued its decision in that case on February 21, 2023, and then petitioned the U.S. Court of Appeals for the Sixth Circuit to enforce that order on April 12, 2023. The latest general counsel memorandum could increase the burden on employers in complying with Board orders in ULP cases and make it more difficult for employers to assess whether to challenge a Board order.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XIII, Number 146

About this Author

C. Thomas Davis, Ogletree, Shareholder, employment law

After graduating from law school in 1987, Tom Davis began his legal career at Ogletree Deakins and is currently the practice group leader of the firm’s Traditional Labor Practice Group. Mr. Davis represents employers in all aspects of employment law matters with a primary focus on the area of traditional labor law. He assists clients in maintaining union-free work environments through the implementation of cutting-edge, positive employee relations programs and creative leadership education. Mr. Davis is a recognized expert in the use of interactive training techniques...

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