PART III - TRADITIONAL AND NONTRADITIONAL REMEDIES
Q. #1: What is a traditional remedy?
The Authority has distinguished in its decisions between traditional remedies and nontraditional remedies. For example, a cease-and-desist order accompanied by the posting of a notice to employees is a traditional remedy provided in virtually all cases where a violation is found. The Authority also has identified other remedies that require some form of affirmative action by a respondent as established, or traditional, remedies, such as a retroactive bargaining order, the grant of backpay, and the release of improperly withheld information. Aside from these general references, however, the Authority to date has not clearly identified the factors which differentiate a traditional remedy from a nontraditional remedy.
Q. #2: Are all traditional remedies granted as a matter of course?
No. Some traditional remedies, such as status quo ante as a remedy for a failure to bargain over the procedures and appropriate arrangements concerning the exercise of a management right and the grant of backpay, have given rise to criteria of their own. Thus, even though considered traditional by the Authority, evidence must still be presented and legal conclusions made to support these traditional remedies
Q. #3: What is a nontraditional remedy?
The Authority has referred to remedies not routinely granted as a matter of course as nontraditional remedies. Nontraditional remedies must satisfy the same broad objectives that are required of all remedies ordered by the Authority, i.e., they must meet the remedy principles. Thus, assuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to "recreate the conditions and relationships" with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct."
Q. #4: What is the basic distinction between traditional and nontraditional remedies?
If a remedy is deemed traditional, the Authority, in essence, presumes that these traditional remedies meet the remedy principles. The burden is on the respondent to establish otherwise. Of course, if the traditional remedy has criteria of its own, the burden remains on the General Counsel to satisfy those independent criteria in order to trigger the applicability of the traditional remedy.
On the other hand, the Authority requires an independent factual basis to sustain a nontraditional remedy. This burden lies with the General Counsel. As such, a nontraditional remedy requires a separate factual determination that the specific nontraditional remedy is reasonably necessary and would be effective to recreate the conditions and relationships which would have existed but for the unfair labor practice, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct.
Q. #5: What must be established to obtain a nontraditional remedy?
To obtain a nontraditional remedy, the General Counsel must establish both that the traditional remedy is not adequate, and that the evidence dictates that a nontraditional remedy is necessary. These questions are essentially factual, requiring specific evidence to establish their existence.
Q. #6: How is this evidence obtained?
The Regions investigate and litigate these remedies in the same manner that the Regions investigate and litigate the essential elements of a violation. As with other factual questions, the General Counsel bears the burden of persuasion, the ALJ is responsible for initially determining whether the remedy is warranted, and the Authority is responsible for ordering such nontraditional remedies.
Q. #7: What is the key to obtaining a nontraditional remedy?
It is essential that when any remedy other than the routinely ordered, traditional remedy is requested, the record contains evidence establishing why it is necessary to order a nontraditional remedy, rather than the routine traditional remedy. Not only must the General Counsel establish that the traditional remedy is not adequate to redress the wrong incurred by the unfair labor practice, but the General Counsel must also establish through evidence that the particular nontraditional remedy sought is appropriate under the remedy principles. Record evidence, not mere policy and equity arguments, is essential to establish the appropriateness of a nontraditional remedy.