On April 8, 2024, National Labor Relations Board (“NLRB”) General Counsel (“GC”) Jennifer Abruzzo released a Memorandum providing guidance to Regional Directors, Officers-in-Charge, and Resident Officers concerning the GC’s continued efforts to secure full remedies for all victims of unlawful conduct—pushing Regions to turn their focus towards employees harmed by violations under Section 8(a)(1) of the National Labor Relations Act (“NLRA”).

The GC stated that an employee who has experienced unlawful employer discipline or the effects of an unlawful rule or contract term cannot be made whole through the mere rescission of the rule, contract term, or disciplinary decision.  The GC reasoned that where “lingering effects” of the employer’s conduct remain in place, simple rescission “falls short of the [NLRB]’s capacity to fully redress violations.”

Further, according to the GC, recission alone for violations of Section 8(a)(1) creates an “unwarranted disparity” where the NLRB “regularly orders the employer both rescind the [rule] and to expunge any discipline instituted under the rule and make disciplined employees whole” for unlawful unilateral change violations under Section 8(a)(5).

The GC provides in the Memorandum that “[t]he assessment of whether an unlawful work rule or contract term has been enforced against any employees should be shifted to the compliance stage.”  Accordingly, the GC encourages Regions to “seek settlements that include make-whole relief for employees who were disciplined or subject to legal enforcement as a result of an unlawful work rule or contract term since the start of the Section 10(b) period”—i.e., 6-months prior to the filing of an unfair labor practice charge.

Where Regions do not have the full information as to affected employees, they should “seek and obtain such information from the employer during settlement efforts,” or in cases that do not settle, Regions should urge the NLRB to “adopt a similar remedial procedure” to ensure that all employees entitled to receive make-whole remedies are able to do so.

Takeaways

It’s always important to remember that, unlike NLRB precedent or rulemaking, GC Memoranda—like the one discussed here—do not have the effect of changing the law.  However, GC Memoranda provide important insight into the GC’s policy agenda and the manner in which the Regions likely will prosecute unfair labor practices. 

We have seen a consistent effort during the GC’s tenure of the Regions seeking complete make-whole relief in settlement discussions for employer violations of the Act, and this Memorandum expands upon those efforts. 

Whereas previously, the potential downside to an overbroad and unlawful employer rule or contract term could be an order requiring a rescission of the rule (assuming no union election petition has been filed, where more serious penalties, such as a bargaining order could now be issued), employers should now be aware of broader penalties that can be imposed, such as monetary awards.  The impact of this Memorandum certainly bears watching with respect to existing and newly-filed charges before the NLRB. 

We will continue to update these developments as Regions act on the GC’s Memorandum.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Chad Thornton Chad Thornton

Chad Thornton is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Counseling Group.