Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: Jeff Bosley
• Publication year: 2023
• Citation: Vol. 37 No. 2

NLRA CASE NOTES

AUTHORS^*

Jeff Bosley

Tyler Maffia

BOARD EXPANDS TRADITIONAL MAKE-WHOLE REMEDY TO INCLUDE DIRECT OR FORESEEABLE PECUNIARY HARMS

Thryv, Inc., 372 N.L.R.B. No. 22 (2022)

In a 3-2 decision, the National Labor Relations Board (NLRB or Board) expanded its traditional "make whole" remedy to include any "direct or foreseeable pecuniary harms" suffered by employees in all cases. These direct and foreseeable pecuniary harms were previously reserved for unusual cases.

The respondent operated a marketing agency whose salesforce was represented by the union. In July 2019, respondent began implementing a proposal to layoff certain employees effective in September 2019. The respondent mailed severance packages to affected employees prior to the layoff, and prior to any bargaining with the union. The respondent offered to bargain over the effects of the layoff decision, but asserted the parties were at impasse concerning the layoff decision. The respondent refused to respond to union information requests related to the layoff and potential future work for separated employees.

The administrative law judge (ALJ) found that the respondent violated section 8(a)(5) of the National Labor Relations Act (N LRA or Act) by failing to respond to the union's requests for information. The ALJ also found that the respondent did not violate section 8(a) (5) by unilaterally laying off the employees because, although the respondent had a duty to bargain over the economic layoff, the parties had reached impasse-based on the union's failure to make counter proposals prior to the layoff date.

The Board adopted the ALJ's finding that the respondent violated the Act by failing to respond to the information requests. Contrary to the ALJ, the Board also found that the layoffs violated section 8(a)(5) because the economic layoffs were a mandatory subject of bargaining and the respondent failed to satisfy its bargaining obligation. The fact that the respondent's decision was presented as a fait accompli, that the union did make counter proposals, and that the respondent's failure to respond to the information requests impeded bargaining all precluded the parties from reaching impasse. Most notably, the Board then clarified and expanded its traditional "make whole" remedy to include any "direct or foreseeable pecuniary harms" suffered by employees. The employees in the case sought three remedies for alleged pecuniary harms suffered as a result of the unlawful layoff: restoration of their prior book of business; reimbursement for the costs of maintaining a company car for business purposes; and out-of-pocket medical expenses incurred while on layoff. While the Board's order included the expanded make whole remedy, the Board deferred the determinations of whether the employees claims here were direct or foreseeable to a later compliance proceeding.

Dissenting, Members Kaplan and Ring agreed with the majority that employees should be made whole for losses suffered as a direct result of unfair labor practices. However, the dissenters disagreed with the blanket rule requiring compensation for "foreseeable" pecuniary harms. Rather, they asserted that indirect...