NLRB Does a U-Turn on Make-Whole Settlement Remedies, Part I

Host Tom Godar welcomes back Husch Blackwell attorney Mary-Ann Czak for a two-part discussion on a recently published memorandum from William Cowen, acting general counsel of the National Labor Relations Board (NLRB). The memo sets forth guidelines for NLRB regions to use in approaching settlement agreements that urge NLRB personnel to “focus on pursuing foreseeable harms that are clearly caused by the unfair labor practice.” In Part I of our show, Tom and Mary-Ann explore how the memo could lead to a reduction of the board’s pursuit of expansive make-whole remedies that had created significant dissatisfaction among management-side counsel. As Mary-Ann explains, the NLRB’s aggressive posture on remedies was the product of a 2021 memorandum that directed board prosecutors to expanded remedies in settlement agreements, including consequential damages and employer letters of apology, among other items. In 2021, the board had a 100% settlement rate; by 2024, it had dropped to 96.3%. Some companies regarded the 2021 memorandum as punitive and have been willing to litigate rather than submit to what they regarded as an unfair settlement process that had created labor-management discord, extended the timeline for resolving cases, and driven up costs for both the government and litigants. Our conversation also covers some practical suggestions regarding the default language found in settlement agreements. Don’t miss this episode that covers how NRLB policy regarding settlements could be changing, and stay tuned for Part II, which will cover non-admission clauses and other settlement issues in the Cowen memo.