On Nov. 5, 2021, the iconic Swedish band ABBA released its first album of new material in 40 years, and, amazingly, it is their highest-charting album ever on the Billboard 200. (If for some reason you are not familiar with ABBA – and we are not really sure how that could possibly be – check out the album “ABBA Gold: Greatest Hits”). Indeed, it seems as if the National Labor Relations Board (NLRB or Board) was channeling ABBA’s hit “Money, Money, Money” when it issued a news release earlier this month boasting about “a dramatic increase” in monetary remedies and job reinstatements in fiscal year 2021. The Board announced that it recovered nearly $57 million (most of which was in back pay) and obtained job reinstatement offers for 6,307 individuals in FY 2021. To provide context for the Board’s “Dancing Queen”-esque jubilation over these numbers, this surge represents about a 44 percent increase in monies recovered and close to a 550 percent increase in job reinstatement offers from FY 2020. “Mamma Mia,” indeed!
This massive spike in remedies and reinstatements, however, should not be a surprise “Waterloo” for employers, given the clear and pronounced pro-labor stance of the NLRB’s general counsel, Jennifer Abruzzo. Since her Senate confirmation in July 2021, Abruzzo has not been shy about her “Winner Takes It All” intention to overturn business-friendly Board precedent (as we previously blogged about here) and to expand the remedies that the NLRB seeks in unfair labor practice (ULP) proceedings. Indeed, in September, Abruzzo released a memo to all regional offices directing them to “Take A Chance” on seeking further and extensive remedies, such as consequential damages, in ULP cases. Around the same time, she separately issued another memo in which she ordered the regions to seek comparably expansive remedies in settlement agreements. What should cause employers to send an “S.O.S.” over the FY 2021 data is the fact that the Board reached these numbers before Abruzzo and the new Democratic majority of the NLRB even had served a full fiscal year. (Okay, we’re out of ABBA song titles.)
While employers are becoming increasingly more aware of the NLRB’s pro-union agenda, the remedies data released for FY 2021 is a stark reminder of how severe potential ULP liability may be. Now more than ever, employers must be vigilant in how they operate their workplaces, as the remedies stemming from potential ULP charges will likely be far more extensive and expensive. Some might even say that the Board has adopted a “Gimme! Gimme! Gimme!” mentality. (Now we’re done. Seriously.)
Best to spend time listening to greatest hits albums – not fighting unnecessary ULPs and advancing the Board’s goal to top the “remedy” charts.
- Employers must be aware of the harsh economic liability and consequences that ULP charges now carry under the NLRB’s new leadership.
- Employers should continue to seek regular counsel from their labor attorneys on their business operations to best avoid a ULP situation.