Expansive Backpay Awards from Invalid Board’s Latino Express Decision Survive: NLRB | Practical Law

Expansive Backpay Awards from Invalid Board’s Latino Express Decision Survive: NLRB | Practical Law

In Don Chavas, LLC, the National Labor Relations Board (NLRB) unanimously approved the rationale of Latino Express and awarded employees terminated for engaging in concerted activity protected under the National Labor Relations Act (NLRA) with backpay as would be calculated under Latino Express.

Expansive Backpay Awards from Invalid Board’s Latino Express Decision Survive: NLRB

by Practical Law Labor & Employment
Published on 12 Aug 2014 • USA (National/Federal)
In Don Chavas, LLC, the National Labor Relations Board (NLRB) unanimously approved the rationale of Latino Express and awarded employees terminated for engaging in concerted activity protected under the National Labor Relations Act (NLRA) with backpay as would be calculated under Latino Express.
On August 8, 2014, in Don Chavas, LLC, the panel (Board) heading the NLRB's judicial functions unanimously approved the rationale of Latino Express and awarded employees terminated for engaging in NLRA-protected concerted activity with backpay as would be calculated under Latino Express (361 N.L.R.B. slip op. 10, (Aug. 8, 2014)).

Background

In Latino Express, the Board expanded the scope of backpay awards after inviting amicus briefs on suggested changes to the NLRB’s remedial scheme (see Legal Updates, NLRB Adopts Expanded Remedies for Backpay Awards and NLRB Invites Briefs on Allocating Income in Backpay Awards).
The NLRB’s General Counsel also issued memoranda to guide NLRB personnel in applying the Board’s expansion of remedies under Latino Express (see Legal Updates, NLRB Issues Guidance Memo on Retroactive Modification of Board Orders to Incorporate Latino Express Remedies and NLRB's Acting General Counsel Rolls Out Plan to Adjust Backpay Awards for Excess Income Taxes and Reports to the Social Security Administration).
In light of the Supreme Court’s decision in Noel Canning, the Board will be vacating and reissuing many of the decisions it issued between January 4, 2012 and August 2, 2013 (see Legal Update, Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions and Article, Expert Q&A on Noel Canning and Its Aftermath). Latino Express, which a Board panel comprised of Chairman Pearce and Members Griffin and Block issued on December 18, 2012, is among those decisions.

Outcome

A Board panel comprised of Chairman Pearce and Members Johnson and Schiffer:
  • Unanimously approved the rationale of Latino Express.
  • Awarded employees terminated for engaging in NLRA-protected concerted activity with backpay as would be calculated under Latino Express.

Practical Implications

While the Board has not formally reviewed and reissued Latino Express, this decision clarifies that the NLRB will continue to:
  • Uphold Latino Express's rationale.
  • Apply the Latino Express method for calculating backpay.
  • Impose reporting and backpay obligations on offending employers consistent with the remedies the invalidly-appointed Board approved in Latino Express.