The National Labor Relations Board (NLRB) closed out a busy 2022 with four pro-labor decisions that will reshape the workplace in 2023.
NLRB adds consequential damages remedy
In his most far-reaching opinion Thryv, Inc.The NLRB ruled that consequential damages can now be sought as part of the usual “complete” remedies, such as reinstatement or back pay. This dramatic change from previous practice means that employers found to have violated federal labor law may now find themselves ordered to pay employees for a wide range of potential consequences of the violation, such as reimbursement for fees accrued as a result of late rent or payments interest on a personal loan to cover living expenses. Although the NLRB eschewed the term “consequential damages” in its own opinion—instead calling the remedy “compensation for direct or foreseeable financial damages,” the legal effect is the same. Employers must now be aware of another tool in the NLRB’s toolbox to create a whole.
The Thryv, Inc. The decision follows GC Memorandum 21-06 and GC Memorandum 21-07, in which General Counsel Jennifer Abruzzo urged regional boards to seek “the full range of available remedies to ensure that victims of wrongful conduct are relieved of all losses they have suffered “. as a result of unfair labor practices.” In Memorandum GC 22-06, she provided an update on those efforts, saying the regions had successfully “secured compensation for derivative economic damages” in forms as wide-ranging as fees ranging from late rent to the cost of infant sustenance as a result of the loss of a breast pump station at work or the cost of retrofitting a former employee’s car so that it can be used in a new job.
The Thryv, Inc. the decision also emphasized that the NLRB will consider the economic consequences of labor violations in each case, “regardless of the seriousness of the violation or the respondent’s past conduct.” Such a warning should alert employers of all sizes.
The NLRB facilitates the “micro unit” organization test.
in American Steel Construction, Inc., the NLRB reinstated the standard established in 2011 Special health care a view allowing unions to organize smaller groups of employees (sometimes called “micro-units”). The test that the NLRB (re)adopted is used to determine whether additional employees must be included in the requested unit (in practice, often employees who would not support the union and cause the loss of majority support) in order for the unit to be suitable 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 requested unit is “readily identifiable as a group” by “job classifications, departments, functions, jobs, skills, or similar factors”; and (3) whether the required unit is “sufficiently different” from the excluded employees. Then, when a party argues that a petitioning unit that meets these elements must include other employees to be a suitable unit, it is up to that party to meet the high bar of showing that the excluded employees share a “predominant community of interest.” with the required unit such that they must be included. As we saw earlier Special health care was overruled by the republican majority council in 2017, meeting this burden is extremely difficult.
When solving for scope American steel decision, NLRB Chair Lauren McFerran explained that “[t]The board’s role in assessing the suitability of bargaining units is to ensure that workers enjoy . . . full freedom of association.” Chairman McFerran further noted that “[r]return to Special health care the standard is consistent with this principle and ensures that workers have the opportunity to organize in the unit of their choice, as long as it is not arbitrary and irrational.
American Steel it will aid unionization efforts and make it easier for unions to gain majority support within a smaller unit of employees.
NLRB Reaffirms Longstanding Restrictions on Inquiring into Union Business
in Sunbelt Rentals, IncThe NLRB reaffirmed the 1964 decision, Johnnie’s Poultrya decision that the previous Republican majority of the NLRB sought to overturn in 2021. Johnnie’s Poultry standard, which applies to an employer’s questioning of an employee in preparation for an unfair labor practice (ULP) defense, requires employers to: (1) explain the purpose of any questioning, (2) assure employees that they are not subject to retaliation for participating in questioning and (3) obtain employee participation on a voluntary basis. Because of the “inherent danger of coercion” present in ULP hearings, the NLRB saw a “bright line” approach Johnnie’s Poultry standard as a necessary means of balancing the conflicting interests of the employee and the employer.
Although Johnnie’s Poultry was a fairly well-settled rule under NLRB precedent, it has not been consistently applied by reviewing courts. After this latest reconfirmation, employers should remember to provide an adequate amount Johnnie’s Poultry assurances – ideally in writing – or risk facing another ULP.
NLRB Restores Relaxed Property Access Standard
In his Bexar County Performing Arts Center Foundation (Bexar County II), the NLRB ruling struck down the 2019 rule (Bexar County I), which made it easier for employers to exclude off-duty employees from an on-site contractor. Now under revived New York New York by default, property owners can exclude off-site contractor employees “only if the owner can demonstrate that their activities significantly interfere with his use of the property, or if the exclusion is justified by some other legitimate business reason.” The NLRB described the need to “maintain production and discipline” as examples of legitimate business reasons under the standard. Restored New York New York standard flips the focus Bexar County Inow emphasizing the impact of the worker’s activity rather than the property owner’s interests.
This is another dramatic shift Bexar County I the standard allowed employers to prohibit off-site contractor employees from accessing physical property to engage in NLRA Section 7 activities unless those workers “regularly and exclusively” worked on the property and the owner demonstrated that the workers had a “reasonable and unforced alternative” to communicate their message.
NLRB Bexar County II the decision greatly expands the ability of contract workers to engage in bargaining and organizing activities protected by Section 7 of the NLRA on the property where they work. This standard applies regardless of whether the employee’s employer owns the property. Employers and owners of employer-use properties should review any agreements they may have with contractors regarding potential workplace disruptions.
Taken together, the NLRB rulings clearly signal a pro-labor board eager to expand worker protections. Changes in laws made by the NLRB Thryv, Inc., American steeland Bexar County II employers are likely to feel the decision almost immediately. Because Sunbelt Rentals, Inc. only confirms the decision Johnnie’s Poultry, its effects are more subdued. However, employers should be aware of the magnitude of any pro-labour decision as it signals what to expect in 2023.