The National Labor Relations Act is infamous for its weak remedies, particularly the Board’s lack of authority to grant punitive relief. While commentators have focused on the ineffectiveness of remedies, few have tried to answer why, on a theoretical level, those remedies are weak and ineffective. In Consequences of a Mismatch: Remedial Philosophy and Statutory Rights Under the National Labor Relations Act, Rita Trivedi tackles this question. She explains that NLRB remedies have been limited to contract-like make-whole remedies, which she calls ex-post relief, even though labor rights are not contractual rights but “something of value that [Congress] deemed worthy of protection,” which she calls ex-ante legal rights. (P. 25.)
To make her point, Trivedi breaks down her argument into five parts. She begins with the historical fact that NLRA remedies have been limited to make-whole relief, such as that used to remedy breach-of-contract claims, since the Supreme Court’s 1940 decision in Republic Steel Corporation v. NLRB. For example, the remedy for discriminatory discharge is backpay and reinstatement; however, backpay damages fail to deter most employers from violating the Act because wages are generally low. For the employer, it often pays to break the law.
In the next sections, Trivedi explains the difference between traditional ex-post (e.g., contract) and ex-ante (e.g., tort) relief and why ex-ante relief is appropriate to remedy labor violations. In part two, she explains that the three traditional remedial interests of contract law—expectation, reliance, and restitution—“reflect the lack of a value assigned to the parties’ ‘right’ to receive what they contracted for.” In part three, she explains ex-ante deterrence could play a role in more fully remedying labor rights because “ex-ante deterrence remedies send a societal message that the law values the rights that have been violated and is ready to direct compliance with social norms.” (P. 45.) She also draws on the philosophical underpinning of tort law and federal employment law to show how remedies could serve the deterrence function without necessarily being punitive. (Pp. 47–49.) In part four, Trivedi explains that using ex-ante deterrence in conjunction with ex-post relief is appropriate given that Congress created statutory rights, and therefore deterrence is necessary to protect the normative value of those legal rights.
In part five, Trivedi uses examples to show the most problematic aspects of taking only a make-whole approach to breaches of the NLRA’s statutory duties. (Pp. 56–62.) For example, Trivedi explains that nip-in-the-bud unfair labor practices are difficult to remedy with only ex-post relief because “‘[n]o other worker in his right mind would participate in a union campaign in [a] plant after having observed that other workers have been discharged and must wait for three years to have their rights vindicated.’”1 Nip-in-the-bud unfair labor practices are NLRA violations, such as firing union sympathizers during an organizing campaign, which are intended to discourage unionization as soon as it begins.
This article is well-written, well-organized, and cogently argued. Labor law is a highly specialized field that is subject to constant oscillation. Comparatively few lawyers are truly experts in this field, and even experts can barely keep up-to-date with the current state of the law. Moreover, labor law is highly interconnected, meaning that one doctrine affects many others, ideally forming a seamless tapestry. The problem is that every administration has an agenda, tugging at threads, and leaving gaps of disconnected doctrine. This article shows those connections and why the pattern they weave does not make complete sense at the remedial level.
This article is also particularly valuable to the legal academic because it not only explains the law at the doctrinal level but also analyzes doctrine from a philosophical point of view. It seems obvious, now that Trivedi points it out, that an unfair labor practice is a tort and that the courts have limited remedies to contract-like relief in a mismatch that affects substantive rights granted by Congress. Explaining it in this manner clarifies it for the novice and presents the expert with an “aha” moment: Trivedi provides justification for tort remedies.
This article is also timely. NLRB General Counsel Jennifer Abruzzo has directed the NLRB Regional Offices to “request from the Board the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.”2 She has also urged the Regional Offices to seek injunctive relief under Section 10(j) “to ensure that employees’ rights will be adequately protected from remedial failure due to the passage of time” and stated that “[d]uring [her] tenure as General Counsel, [she] intend[s] to aggressively seek Section 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders.”3 While she uses the ex-post “status quo” language of contract, she suggests something more—that what she wants to protect is worthy of protection in and of itself.
And Abruzzo has made good on those promises. For example, she asked for—and the Board granted—make-whole relief that “expressly order[s] [the employer] to compensate affected employees for all direct or foreseeable pecuniary harms that these employees suffer as a result of the [the employer’s] unfair labor practice.”4
In short, Trivedi’s article is an easy read that is both educational and insightful. It clearly explains how remedies under the NLRA work (or fail to work) and provides both a philosophical and doctrinal justification for the current General Counsel’s agenda to remedy unfair labor practices to the fullest extent of the law.
- Rita Trivedi, Consequences of a Mismatch: Remedial Philosophy and Statutory Rights Under the National Labor Relations Act, 27 Advances Indus. Lab. Relations 23, 56 (2023) (citing Nat’l Lab. Relations Bd., GC 10-07, Effective Section 10(j) Remedies for Unlawful Discharges in Organizing Campaigns 1 (2010) (quoting Silverman v. Whittall & Shon, Inc., No. 86 Civ. 1675 (WK), 1986 WL 15735 (S.D.N.Y. June 6, 1986))).
- Nat’l Lab. Relations Bd., GC 21-06, Seeking Full Remedies 1 (2021); See also Nat’l Lab. Relations Bd., GC 21-07, Full Remedies in Settlement Agreements (2021).
- Nat’l Lab. Relations Bd., GC 21-05, Utilization of Section 10(j) Proceedings 1 (2021).
- Thryv, Inc., 372 N.L.R.B. No. 22, at slip op. 1 (Dec. 13, 2022).
