For the first time in over three decades, the National Labor Relations Board (NLRB or Board) has ordered an employer to reimburse employees for wages they lost while attending negotiation sessions on behalf of the union. Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118 (2022). The Board found that the employer involved in the case had bargained in bad faith by having a "take-it-or-leave-it attitude" during contract negotiations. While Republican Board member Marvin Kaplan dissented from the granting of this extraordinary remedy, the Board majority (composed of Democratic Board members Lauren McFerran and David Prouty) found it appropriate because the employer was a repeat offender that had been "previously warned by the Board that extraordinary remedies might be imposed if it continued to engage in unlawful conduct." The Board furthermore ordered the employer to reimburse the union for its bargaining expenses from January 2019 through the date that good faith negotiations begin.
This decision has a familiar echo following NLRB General Counsel Jennifer Abruzzo's mandate to regional offices across the country to seek more expansive remedies in unfair labor practice (ULP) cases. In fact, while the Board is still contemplating whether to modify its traditional make-whole remedies to include consequential damages and other such measures, regional offices have been forging ahead in requiring such terms in ULP settlement agreements. For instance, employers settling ULP cases in recent months have been forced to reimburse employees for fees for late car loan payments and/or late rent, interest on loans, and the cost of baby formula (due to the loss of a workplace breast-pumping station). These are only a few examples of the extraordinary remedies the General Counsel has been pursuing.
Bottom Line: The Board's ruling in Nexstar Broadcasting suggests that it is poised to accept General Counsel Abruzzo's invitation to expand the remedies available in ULP cases. Employers should be cognizant of the heightened financial exposure that will accompany this new direction and adopt proactive strategies to protect against substantial economic liability.
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