The National Labor Relations Board's remedies are the vehicles through which the policies of the National Labor Relations Act are realized, and the means by which rights conferred by the Act are protected. Through the appropriate remedies, the Board ensures that conditions at the workplace are restored to those which existed before the onset of unlawful conduct. Effective remedies also deter unlawful conduct and promote voluntary compliance with the Act. Congress chose not to specify the precise remedies that would be available to the Board, understanding the Board's need for flexibility to meet diverse situations and those which Congress did not expressly envision. As the Supreme Court noted, "in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration." Thus, the Supreme Court "has repeatedly interpreted [Section 10(c) (of the NLRA)] as vesting in the Board the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review. In short, it is the Board's institutional role to ensure that its arsenal of remedies carries out the purposes of the Act. Today, as in 1935, employees are still discharged for attempting to organize a union, and measures may still be needed to level the playing field. Indeed, for a mature statute the growing incidence of discipline for union activity is disturbing. While these realities persist, much else has changed. Economic and technical changes are sweeping the workplace, and some of these changes have impacted the effectiveness of the Board's traditional remedial strategies. Thus, the Board has periodically adopted changes aimed at improving the Act's remedial scheme. Some of its most recent changes are discussed below. In addition, I want to explore remedial initiatives designed to meet the new challenges of the changing workplace.
NLRB Remedies: Where Are They Going?,
Rich. J.L. & Pub. Int.
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