President Biden’s first major domestic proposal, the Build Back Better Act (“BBB Act”), has been (and will continue to be) the subject of much press and debate. Of particular interest to our audience, the BBB Act, an expansive economic and climate bill, could significantly enhance the enforcement tools of the National Labor Relations Act (“NLRA”).
Specifically, if passed in its current form, the BBB Act (which has already been passed by the House) would add some new teeth to the NLRA by allowing the NLRB to impose significant civil penalties on an employer that commits an unfair labor practice. Notably, on December 11, the Senate Health, Education, Labor and Pensions Committee approved modified text of the BBB Act, including provisions that provide for civil penalties of up to $50,000 per violation of the NLRA, and up to $100,000 for NLRA violations that resulted in “discharge or other serious economic harm” where the employer committed another similar violation within the past 5 years. It is also worth noting that these penalties are in addition to any other remedies available to the Board, which historically have included equitable remedies along with providing notice of violations to employees.
Currently the NLRB has no authority to issue any fines or penalties, and enforcement is generally limited to “make whole” remedies. There is no question that, if passed by the Senate in its current form, the recently amended provisions of the BBB Act (which would almost certainly be signed by President Biden) will provide significant leverage to the Board and to the unions advancing charges regarding alleged labor practice violations. Because the NLRB prosecutes cases against both union and non-union employers, this is something that all California employers should be watching closely, particularly those non-union employers that are potential targets of organization.
For those interested, the relevant language of the bill can be found on page 38: https://www.help.senate.gov/imo/media/doc/KIN21845.pdf
Our traditional labor attorneys at CDF Labor Law LLP will continue to post regarding any pertinent developments.
