The National Labor Relations Board (NLRB) closed out a busy 2022 with four labor-friendly decisions that will reshape the employment landscape in 2023.
NLRB adds remedy for consequential damages
In his most far-reaching opinion, Thryv, Inc., the NLRB held that consequential damages can now be sought as an integral part of the board’s usual “cure” remedies, such as reinstatement or back wages. This dramatic change from previous practice means that employers found to have violated federal labor law can now be forced to pay workers for a wide range of potential consequences of the violation, such as back fees incurred for late rent payments or interest on personal a loan taken to cover living expenses. Although the NLRB eschewed the term “consequential damages” in its opinion—instead calling the remedy “compensation for direct or foreseeable pecuniary damage”—the legal effect is the same. Employers must now be aware of an additional tool in the NLRB toolkit for making full relief.
The Thryv, Inc. The decision follows Memorandum GC 21-06 and Memorandum GC 21-07, in which General Counsel Jennifer Abruzzo called on the Regional Administration to seek “the full range of remedies available to ensure that victims of wrongful conduct are healed for losses suffered as a result unfair labor practices.” In Memorandum GC 22-06, she provided an update on those efforts, noting that the regions have successfully “secured compensation for economic damages incurred” in forms ranging from late rent fees to the cost of baby formula due to the loss of a breast pump at workplace or the cost of retrofitting a former employee’s car so that it can be used at a new job.
The Thryv, Inc. The decision also emphasized that the NLRB will consider the economic consequences of labor law violations in each case, “regardless of the seriousness of the violation or the defendant’s past conduct.” Such a warning should alert employers of all sizes.
The NLRB facilitates the “micro-unit” union organizing test.
IN American Steel Construction, Inc., the NLRB reinstated the standard established in 2011 Specialized health care opinions, allowing unions to organize smaller groups of employees (sometimes called “micro-units”). The test (re)adopted by the NLRB is used to determine whether additional employees (in practice, often employees who would not support the union and cause the union to lose majority support) must be included in the unit claimed for the unit to qualify as a bargaining unit. Under this framework, the NLRB must first consider three elements: (1) whether the employees in the proposed unit “share a community of interest”; (2) whether the claimed unit is “readily identifiable as a group” such as “a classification of jobs, departments, functions, jobs, skills, or similar factors”; and (3) whether the claimed unit is “sufficiently different” from the excluded employees. Then, when a party argues that the unit required to satisfy these elements must include additional employees in order to be a proper unit, the burden is on that party to meet the high bar of showing that the excluded employees share a “predominant community of interest” with the unit for which is required, so they must be included. As we saw before Specialized health care was overruled by the Republican-majority Committee in 2017, so carrying this burden is extremely difficult.
In solving scope american steel decision, NLRB Chair Lauren McFerran explained that “[t]The board’s task in evaluating the suitability of bargaining units is to ensure that workers enjoy. . . full freedom of association.” Chairman McFerran further noted that “[r]going back to Specialized health care The standard is consistent with this principle, ensuring that workers have the ability to organize in a unit of their choice, as long as it is not arbitrary and irrational.”
american steel will aid union organizing efforts, making it easier for the union to establish majority support within a smaller unit of employees.
NLRB Reaffirms Longstanding Limits on Examining Union Activities
IN Sunbelt Rentals, Inc., the NLRB affirmed the 1964 decision. Johnnie’s Poultrya decision that the NLRB’s previous Republican majority sought to overturn in 2021. Johnnie’s Poultry The standard, which applies to an employer’s questioning of employees while preparing an unfair labor practice (ULP) defense, requires employers to: (1) explain the purpose of any questioning, (2) assure workers that they are not subject to retaliation for participating in the questioning, and (3) obtain employee participation on a voluntary basis. Because of the “inherent danger of coercion” present in ULP trials, the NLRB saw a “strong line” approach Johnnie’s Poultry standard as a necessary means for balancing the conflicting interests of employees and employers.
Although Johnnie’s Poultry was a relatively well-settled rule under NLRB precedent, it has not been consistently applied by reviewing courts. After this latest confirmation, employers should remember to provide the appropriate Johnnie’s Poultry guarantees—ideally in writing—or you risk dealing with another ULP.
The NLRB reinstates a relaxed standard for access to property
In his Bexar County Performing Arts Center Foundation (Bexar County II) decision, the NLRB struck down the 2019 rule (Bexar I County) which made it easier for employers to ban off-duty contractor employees. Now, under revived New York New York by default, property owners may exclude on-site contractor employees “only if the owner can demonstrate that their activity significantly interferes with his use of the property or when the exclusion is justified by another legitimate business reason.” The NLRB described the need to “maintain production and discipline” as examples of legitimate business reasons under the standard. Re-installed New York New York standard rotates the focus Bexar I Countynow emphasizing the impact of workers’ activities rather than the interests of property owners.
This is another dramatic shift, like Bexar I County The standard allowed employers to prohibit on-site contractor employees from off-duty access to physical property for purposes of engaging in NLRA Section 7 activities, unless those workers “regularly and exclusively” worked on the property and the owner demonstrated that the workers had “ reasonable alternative without attack” to get their message across.
of the NLRB Bexar County II The ruling greatly expands the ability of contract workers to engage in bargaining and organizing activities protected by NLRA Section 7 on the property where they work. This standard applies regardless of whether the worker’s employer owns the property. Employers and owners of property used by employers should review any contracts they may have with contractors regarding potential site disturbances.
Conclusion
Taken together, the NLRB decisions clearly signal a labor board that wants to expand worker protections. Law changes made by the NLRB Thryv, Inc., american steeland Bexar County II employers are likely to feel the decisions immediately. Because Sunbelt Rentals, Inc. the decision only confirms Johnnie’s Poultry, its effects are more muted. Nonetheless, employers should be aware of the scope of any pro-labour decision, as it signals what to expect in 2023.