NLRB Imposes Extreme Remedies on Repeat Offender
November 5, 2014
By Erin Fowler* and Chris Johlie
Recently, the National Labor Relations Board found that HTH Corporation had committed multiple violations of the National Labor Relations Act and went to extraordinary lengths to craft a remedy for the employer’s “egregious and pervasive” unfair labor practices. The Board’s decision on the merits of the unfair labor practice charges was relatively routine; its remedy for the violations was not.
HTH has a long history with the Board. Over the past ten years, the Board has ordered a variety of remedies against HTH for multiple labor law violations. According to the Board, HTH’s failure to abide by past remedial orders justified additional and enhanced remedies in this case.
The Board imposed several monetary remedies on HTH, including: the General Counsel’s and union’s litigation costs, consisting of attorneys’ fees, salaries, witness fees, transcript and record costs, printing costs, travel expenses, per diems, and other reasonable expenses; the union’s bargaining expenses to the extent they escalated beyond “normal” due to the company’s unlawful conduct; and the union’s expenses incurred as a result of the company’s unlawful decision to bar union officials from entering the facility.
The Board did not stop at a monetary remedy. It ordered HTH to post for three years (instead of the standard 60 days) and mail the traditional Board notice and an “Explanation of Rights” to all employees, managers, and supervisors. The Explanation of Rights is a new remedy consisting of a statement of “core” employee rights and examples relevant to HTH’s unfair labor practices. The Board required HTH to give the notice and Explanation of Rights to all new hires for three years and to read both at meetings attended by all employees, managers, and supervisors, including senior executives. In addition, the Board required HTH to publish the notice and Explanation of Rights in local publications of the Board’s choosing and to mail it to former employees. The Board also imposed a visitation remedy pursuant to which a Board agent may enter HTH’s facility for three years to monitor posting, distribution, and mailing requirements.
Finally, the Board took a step towards awarding front pay, a remedy the Board has never imposed. In considering an appropriate remedy for an unlawfully discharged employee, the Board noted that front pay, instead of reinstatement, could serve the purpose of making the employee whole. However, the Board decided against front pay, noting that reinstatement is the preferred remedy for an unlawful discharge and deferring the front pay issue for now.
NLRB detractors have long complained that the standard Board remedies do not deter unlawful conduct. The Board’s decision in HTH may signal a more aggressive remedial approach, certainly in cases involving “egregious and pervasive” labor law violations, but also in less serious cases.
* Erin Fowler is a first year associate at Franczek Radelet, and will be sworn in to the Illinois bar on November 6.