Is the NLRB Overstepping? Proposed Remedy Would Give Unions Hiring Control

By Chad M. Horton - Shawe Rosenthal LLP

February 16, 2024

The National Labor Relations Board’s (the Board) General Counsel, Jennifer Abruzzo, has sought stronger remedies for violations of the National Labor Relations Act. Her newest proposed remedy would, in some cases, allow a union to decide who must be hired by the employer.

Specifically, in a case originating out of the NLRB’s Chicago Regional Office and now pending before the Board, GC Abruzzo is seeking a remedy that would require an employer found to have terminated an employee in violation of the National Labor Relations Act to “hire qualified replacement employees selected by the union” (emphasis added!) if the terminated employee elects not to accept reinstatement. Now, if the Board finds that an employee was terminated unlawfully, the employee is owed back pay and must be offered reinstatement. But often, given the lengthy passage of time from when an unfair labor practice charge is filed to when a case is litigated before the Board, terminated employees find new – and, in some instances, better or more lucrative – employment. As a result, the terminated employee no longer wants to return to work with the employer (who unlawfully terminated them). Currently, that employee would simply collect their back pay and be on their way. The employer would be free to select an replacement of its choosing or even keep the position vacant.

But no more, if GC Abruzzo has her way. If the Board adopts this proposed remedy, the union – not the employer – will decide who will be hired into the position vacated by the terminated employee. And, unlike the employer, the union does not have an interest in selecting the most qualified person for the position. One need not strain to envision cases where a union will select  trained union “salts” (i.e., a union organizers who work for an employer with the primary intent to organize the employer) to fill the vacant position.

Thus, this remedy, if adopted by the Board, takes hiring control out of an employer’s hands and places it squarely in the hands of a union. (By the way – does this then make the union a joint employer of the employer’s employees?) This should be concerning to all employers.

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