Private Injuries, Public Policies: Adjusting the NLRB's Approach to Backpay Remedies

Abstract

From fiscal years 2004 through 2008, over 135,000 employees received backpay through NLRB proceedings, mostly based on wrongful discharges. The Labor Board's backpay determination processes are often cumbersome and time-consuming to apply: they effectively invite employers to reduce and delay monetary recoveries and, not coincidentally, they undermine the remaining employees' interest in pursuing unionization and a collective bargaining relationship.The Article first asks to what extent the Board has statutory authority to adjust its approach toward backpay and mitigation. The answer, in short, is more than has previously been understood. Invoking the remedial authority found within section 10(c) and embraced by the Supreme Court in its Phelps Dodge decision, the Article then proposes that the Board act to develop and defend a mandatory minimum backpay award. The Article proposes a two-tiered approach, based on the substantial differences in processing time between successful backpay claims resolved through settlement and claims resolved following litigation. The Article explains and justifies the award of mandatory minimum backpay ranging from one calendar quarter to one year, to be conferred without regard to net loss and mitigation effects.