The NLRB determines whether employees want to be represented by a union in dealing with their employers and, if so, by which union. These are known as “representation cases” or “R cases.” The NLRB maintains certain procedures and standards of conduct that are at least intended to assure free and fair elections.

The NLRA prohibits certain acts, called unfair labor practices (ULPs), by employers and by labor organizations. The NLRA requires that the Board investigate ULP charges in so-called “C cases” and, where it finds a violation of the law, devise remedies to redress the effects of the unlawful act, including “make-whole” remedies, such as reinstatement and/or back pay for workers who were wrongfully discharged.

In December 2022, the Board ruled 3-2 to add consequential damages to its traditional make-whole remedies like backpay and reinstatement.1 This new remedy could cover losses such as medical expenses, credit card late fees, moving expenses necessary to obtain new employment, and job retraining or recertification expenses.

Under this new precedent, the Board will consider the economic consequences of labor law violations in any case that calls for make-whole relief, and not just the most egregious cases. In terms of procedure, the General Counsel’s office will present evidence during compliance proceedings to show the amount of economic harm and why an employer is responsible for those damages, and employers will have the chance to challenge the amount, argue that the harm was not direct or unforeseeable, or contend that the harm would have occurred regardless of the unlawful conduct.

• On October 21, 2025, the Ninth Circuit Court of Appeals reaffirmed the Board's new remedial framework, including the Board's ability to order employers to compensate employees for “direct or foreseeable” harms so long as it is equitable and would restore the situation as nearly as possible to what it would have been obtained absent the unlawful conduct taking place.2 In a case where the employer locked out employees who ended a strike and unconditionally offered to return to work, the Court upheld the Board's order requiring the employer to pay affected employees for any losses of pay they may have suffered because of the lockout, including search-for-work and interim employment expenses, regardless of whether those expenses exceeded their interim earnings. Although the Court noted the Board is not authorized to issue “consequential damages,” it affirmed the Board's make-whole relief order because it vindicated a public right in the form of restoring employees to the measure of what was taken from them due to the employer's conduct. The monetary relief ordered was designed to eliminate industrial conflict; thus, the Court determined the Board's order vindicated a public, not a private right. Accordingly, the Court determined the order for compensation was appropriate.

Conversely, on December 27, 2024, the Third Circuit vacated part of an NLRB order requiring an employer to pay two allegedly wrongfully terminated employees for “all direct or foreseeable pecuniary harms” resulting from the employer's alleged unfair labor practices and held that such a remedy exceeded the Board's authority under the NLRA.3 Though it affirmed the Board's findings that the employer unlawfully fired employees, the Court explained Congress granted the Board authority to order equitable relief in the form of “cease and desist” and “affirmative action” remedies. But the Court held that ordering an employer to compensate employees for their losses resulting from the employer's conduct went beyond the Board's authority because “Congress did not establish a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct.”

Similarly, on October 31, 2025, the Fifth Circuit rejected the NLRB’s new remedial framework, deepening a circuit split regarding whether the NLRB was within its powers when it adopted a standard practice of compensating employees for “direct or foreseeable” harms.4 In denying the NLRB’s attempt to enforce its order that the employer compensate workers for “direct or foreseeable pecuniary harms” they incurred in line with Thryv, the Fifth Circuit explained that “[b]ecause the Board's remedy aims to redress concrete losses to the Employees wholly apart from backpay and pay-related costs, it covers harms typically dealt with in tort suits for compensatory damages, and it operates as a compensatory damages order.”5 We recommend that employers continue to monitor circuit court decisions in jurisdictions in which they do business.

Notably, the NLRA is not a punitive statute and does not provide for punishment of wrongdoers. However, the Board’s remedial orders are enforceable in federal courts of appeals, and a violation of a court decree enforcing a Board order may be punished by the court through a civil contempt proceeding.

The NLRB also has the authority to engage in administrative “rulemaking” as discussed above with respect to joint employers.

In addition to, and independent from, the Board, the General Counsel (GC) is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in processing cases.

The Board’s order usually includes a direction to the employer, the union or both, requiring them to post notices in the employer’s facility or the union’s office notifying the employees that unfair labor practices will be ceased and informing the employees of any affirmative action being undertaken to remedy the violation.

For serious and widespread unfair labor practices, the Board may require a management official to read the Board’s notice aloud to the employees.6

When an employer repeatedly violates the Act, the Board considers a more expansive list of remedies, including requiring an employer to post a more comprehensive explanation of employees’ rights at its facility for a longer period than usual, requiring an executive or other official to read a notice with a detailed discussion of employees’ rights under the Act, mailing the same notice to employees’ homes, allowing a Board Agent to visit the employer’s facility and inspect the notice postings, and reimbursing the union for expenses incurred in bargaining.7

1. Thryv, Inc., 372 NLRB No. 22 (2022); enf. denied on other grounds 102 F.4th 727 (5th Cir. 2024)