NLRB Leaves Lumps of Coal In Employers’ Holiday Gift Bags

03 January 2023 Labor & Employment Law Perspectives Blog
Author(s): Mark J. Neuberger

The National Labor Relations Board (NLRB or the “Board”) has issued a series of recent decisions that will give employers concern in 2023 and beyond. 

First, on December 13, 2022, the Board issued a decision that greatly enhances the damages aggrieved employees can recover when an employer has been found to violate the National Labor Relation Act (“NLRA”). In that case, Thryv, Inc., the NLRB ruled in a 3 to 2 decision that employers in violation of the NLRA can be assessed "consequential damages" in addition to the more traditional remedies of back pay and reinstatement.  

What does this mean for employers?  Well, in the case at hand, the NLRB ordered the company to compensate the employees for "all direct or foreseeable pecuniary harms suffered as a result of the unfair labor practice." The Board opinion went on to say this would be the new measure of damages to remedy employer violations of the NLRA.

Under this new standard, the type of damages potentially available to affected workers could include such things as out-of-pocket, medical expenses, credit card debt, and any other costs the employee may have incurred trying to make ends meet while they were off work. Such damages go way beyond those the NLRB has traditionally imposed, which have been limited to back pay and reinstatement and significantly increase the financial exposure of labor law violations.

The next day, on December 14, the Board issued a decision in American Steel Construction, Inc., that will make it easier for unions to petition the NLRB to organize smaller bargaining units.  In issuing this decision, the NLRB returns to its previous 2011 standard, which it issued in the Specialty Healthcare case.  That standard makes it harder for an employer to successfully challenge union petitions to represent small groups.  This is important because it is a common strategy for unions seeking to organize to focus on small groups so they can get a toehold inside the company and then later attempt to expand to other groups. 

In recent years, employers have been able to successfully argue that a small bargaining unit is inappropriate and therefore seek to add employees to the unit, in the hope of defeating the union’s organizing attempt. The new standard makes it much more difficult for companies to employ this tactic, as it goes back to the 2011 standard of placing the burden on the employer to show that there is an “overwhelming community of interest” such that the additional employees should be added and included in the bargaining unit.  This will be a tough burden for employers to meet.

If those two decisions were not enough, the hits just kept on coming.  Two days later, on December 16, 2022 the Board issued its decision in Bexar County Performing Arts Center Foundation (Bexar County II”).  This decision grants employees and third parties greater access to their employer’s worksite when they are off duty.  Reflecting yet another flip flop, this cases reverses the Trump-era NLRB’s decision in an earlier version of the case, Bexar County I, and reinstates the more lenient standard the NLRB issued in 2011 in New York New York Hotel & Casino.

The factual background in this case involved a performing arts center in San Antonio, Texas.  Members of a musicians union sought to distribute leaflets on private property owned by the Tobin Center for the Performing Arts. The leaflets publicized a dispute the musicians had with a ballet company who leased the center.  Tobin Center (the property owner) was not involved in the dispute and banned the leafleting on their property. The NLRB cast a skeptical eye on the Tobin Center’s actions and determined that such a ban would be permissible “only where the property owner is able to demonstrate that the contractor employees’ Section 7 [union-related] activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason.” 

Under this standard, it will be much harder for employers and property owners to ban off-duty employees and contractors from engaging in union activity on their property.

But wait!  There have been even more concerning decisions from the NLRB as we turn to 2023.  Tune into next week’s “Employment Law Perspectives” to learn about one of these decisions – an opinion that involves restrictions on employers’ actions in investigating unfair labor practice complaints.

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