Adding to the troubles employers are beginning to face with the new National Labor Relations Board is a report that the agency’s General Counsel (GC) has some new ideas to ratchet up employers’ costs of litigation, and even settlement. The GC, the Board’s chief prosecutor, professes fears that victims of alleged discrimination on account of union activity may think the Board lacks teeth in remedying claimed violations. He is weighing a requirement that employers pay alleged discriminatees at least three months’ back pay where the employer settles a discrimination case before litigation, and at least one year’s worth of back pay after litigation – whether or not the victim has suffered any actual loss of pay!
The General Counsel, we are told, thinks the National Labor Relations Act does not forbid this remedy. We strongly disagree. This is a punitive measure by any standard. It is unrelated to actual losses suffered by the employees involved; indeed, it would constitute a windfall for them. No employee reasonably should expect “a big payday” merely for complaining of discrimination to the Board, even persuasively, yet that’s precisely what is promised. In fact, it seems the aggrieved employee has only to convince some regional Board officials to move forward with an agency complaint and the employer will have to pay a minimum of three months’ wages just to settle. If the employer exercises its right to contest the accusation before a judge, it risks getting tagged with even more onerous damages.
The current Act contains no provision for punitive damages. It speaks of “reinstatement of employees, with or without back pay.” The Board, to our knowledge, has never construed the Act to allow the kind of remedy considered here. The General Counsel’s proposal seems to be just the latest assault on employers by an agency unconstrained even by its own statute.