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NLRB Rules on Question of Back Pay in New Jersey Labor Dispute

Federal law protects workers’ rights to organize themselves and engage in collective bargaining with their employers. The National Labor Relations Act (NLRA) prohibits employers from interfering with these rights. It also authorizes the National Labor Relations Board (NLRB) to investigate alleged violations, rule on complaints, and award remedies like back pay and reinstatement to employees. The NLRB recently issued a ruling in an ongoing New Jersey employment dispute. The employer had raised objections to various details of an order awarding back pay to several former employees. The NLRB’s ruling generally goes in the employees’ favor.

Section 8(a) of the NLRA prohibits “unfair labor practices” by employers, such as interfering with protected activities described in § 7 or discriminating against employees on the basis of their involvement in protected activities. The NLRB has the authority under § 10 “​​to prevent any person from engaging in any unfair labor practice…affecting commerce.” It may serve complaints on employers based on charges received from workers, and conduct proceedings to determine whether an employer has violated the NLRA. Remedies may include reinstatement of any employee who was not dismissed for cause, along with back pay.

The case that was recently before the NLRB began with charges filed by several employees of a New Jersey nursing center in 2011 and 2012. The employees, who are licensed practical nurses (LPNs), alleged that the employer retaliated against them for their union-related activities by eliminating LPN positions and replacing them with other nurses. In 2016, the NLRB ruled that the employer’s actions violated § 8(a). It ordered the employer to offer reinstatement to the employees and awarded them back pay. The Third Circuit Court of Appeals affirmed the order in 2018.

A dispute arose in 2020 over the amount of back pay owed to the employees after they rejected the employer’s offer of reinstatement. The Regional Director for NLRB Region 22 set a hearing, and the employer sought to assert multiple defenses. The NLRB General Counsel (GC) moved to strike many of the employer’s defenses. The dispute made its way back to the Board itself.

The NLRB granted the GC’s motion as to most of the defenses in May 2022. Two of the defenses struck by the NLRB sought to limit the amount of back pay. The GC argued that the back pay period should run from the date of each employee’s discharge to the date they turned down reinstatement. The employer sought to shorten this period based in part on “the Board’s lack of a valid quorum” for part of the period in question, “resulting in a substantial delay in the Board’s issuance of its final Decision and Order.” The NLRB did not have enough members to constitute a quorum for several years, ending in 2014. This caused uncertainty for many NLRB rulings.

In granting the GC’s motion to strike these two defenses, the NLRB found that the employer was trying to “ relitigate the remedy” granted in the original order and affirmed by the Third Circuit. It also cited a Supreme Court decision, NLRB v. J.H. Rutter-Rex Mfg. Co., which stated that “wronged employees” should not bear the consequences of delay by the NLRB “to the benefit of wrongdoing employers.”

The experienced and knowledgeable employment attorneys at the Resnick Law Group represent workers in New Jersey and New York in a variety of claims under federal and state law. We are available to answer your questions and address your concerns. To schedule a confidential consultation, please contact us today online, at 973-781-1204, or at 646-867-7997.

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