The NLRB’s recent decision in Norquay Construction, Inc., 359 NLRB No. 93 (April 15, 2013) has caused some concern. Some of the facts in Norquay are somewhat unusual: a union agent who wanted to uphold so-called “area standards” and was being ejected from the employer’s construction site was found to have fallen down stairs upon being pushed by an employer agent. At trial, the Administrative Law Judge decided that while pushing the agent may have been an unlawful act, it was not specifically an unfair labor practice under the National Labor Relations Act. The Board reversed the ALJ, finding the NLRA’s protection extends to union agents acting to uphold area union labor standards, and thus, the employer’s conduct was an unfair labor practice.
This conclusion is not the surprising part of its decision. The surprising aspect to many Board observers is that the remedy imposed by the NLRB for the employer’s putative assault included not only back pay, but also medical expenses “if it is shown… that [the union agent] incurred medical expenses and suffered a loss of pay and benefits as a result of the unlawful assault.” Such a remedy, while not unheard of, is rare. The ALJ made no findings as to whether the union agent was injured and, as a result, about whether he lost wages or benefits. The Board ordered that these be determined through the post-case NLRB compliance process. If it is found that union agent incurred medical expenses, they will be awarded.
The employer argued that an award of medical expenses would be inappropriate. The NLRB, mindful that this remedy is suspiciously close to a tort remedy, cited two of its decisions to explain why an award of medical expenses is an appropriate remedy. In Freeman Decorating Co., 288 NLRB 1235 (1988), the Board acknowledged it does not award tort remedies. Instead, medical expenses awarded under the Act are not for physical injuries suffered, but for reimbursement of medical and rehabilitative expenses not covered by insurance. (In Freeman, the individual who had been discriminated against was an employee who had been unlawfully discharged and lost insurance coverage.)
The Board also cited Nortech Waste, 336 NLRB 554 (2001). That case also involved an employee. The employee had been discriminatorily assigned to a less-desirable job and suffered an injury at that job. The NLRB ordered the employer to provide backpay, lost benefits, and medical expenses up to the time when she was medically released to return to work. The Board explained its “prior reluctance” to award medical expenses thusly: while tort remedies for “nonspecific” personal injuries like pain and suffering are within the expertise of state tort actions, medical expenses arising from the employer’s discriminatory acts “are specific and easily ascertained.”
As noted above, while the Board’s award of medical expenses to the union business agent may raise eyebrows, it is not without precedent. It is, however, a potential red flag to employers. Because of the NLRB’s expansive view of remedies, it is possible that we may see a rise in allegations by employee-charging parties of physical or emotional harm in Board unfair labor practice charges. This could result in awards of medical expenses not being rare at all.