NLRB raises stakes on make-whole remedies

On December 13, 2022, the National Labor Relations Board (NLRB) issued a decision expanding remedies available to employees who prevail in an unfair labor practice (ULP) charge. In addition to backpay and reinstatement, employers now may be liable for “make-whole” remedies, which include direct or foreseeable harm suffered as a consequence of their unlawful conduct. Monetary awards will be available to remedy virtually all forms of economic harm, even in the absence of egregious circumstances.

Facts
Thryv, Inc., operates a marketing agency engaged in the business of selling Yellow Pages advertising. In July 2019, it proposed to lay off six employees with the title of new business advisors.

Over the course of September and October, Thryv met with the union to discuss and negotiate the reduction in force. In connection with the discussions, the union requested information to assist in developing a proposal to avoid the reduction. The employers produced some, but not all, information requested by the union.

Thryv then unilaterally laid off the six new business advisors. The union filed an ULP charge before the NLRB. The Board found the employer committed a ULP under Section 8(a)(5) and (1) by failing and refusing to respond to the requests for information made by the union. It also found the layoff was unlawful because it was presented as a fait accompli.