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.
- 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.
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.
Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Traditional Labor Relations blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.