No Rights without a Remedy: The Long Struggle for Effective National Labor Relation Act Remedies

Abstract

Human Rights Watch and others have criticized the National Labor Relations Act (NLRA) for having remedies so weak they fail to enforce the law and to protect employees. This issue is not new. In fact, there was a hard fought struggle over NLRA remedies during its drafting and, once it became law, in the courts. The struggle over remedies continues today. In September and December 2010, Acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon took up that challenge by building upon prior General Counsels‘ initiatives seeking to strengthen NLRA remedies. In late 2010, Solomon issued memoranda ordering Regional Offices to seek effective remedies for employer violations that affected employees‘ rights to union representation. In early 2011, Solomon issued three new memoranda concerning remedies in first contract bargaining cases, new methods for calculating backpay remedies to better effectuate the NLRA‘s remedial purposes, and changes to the process of deciding whether the amount of backpay should be reduced because of a failure to mitigate damages.

Keywords: NLRB, NLRA, Labor, Remedies, Unions, Collective Bargaining

JEL Classification: J38,J3, J5, J58, K31, K41, K42