In the article “Labor of Law: NLRB General Counsel Wants Employers Who Delay Negotiations to Pay Up,” labor and employment partner Brian Garrison discussed a motion asking the National Labor Relations Board (NLRB) to overrule a labor practice case from 1970.
According to Law.com, the motion was filed by attorneys for the NLRB’s general counsel with the goal to create a penalty for employers who stall the collective bargaining process, so they must pay employees the wages they presumably would’ve collected but lost out on because of the delay.
Garrison said another concern for employers is the willingness of the current NLRB to impose tougher penalties. He added that he has “seen a willingness of regional offices to seek damages that go beyond the traditional definition of a ‘make whole’ remedy to include consequential damages and other damages that were not previously seen.”
There are “no guardrails for the NLRB and implementing this ‘made whole’ remedy,” explained Garrison with respect to overturning the labor practice case. “Depending upon the rate of inflation, for example, what the cost of living is determined to be at a particular time—that could drive the decision that the NLRB reaches as to what the ‘make whole’ remedy would be, without regard to what the economic picture is for the employer or the employer’s industry, at the time of the decision,” he said.