NLRB Leaves Lumps Of Coal In Employers’ Holiday Gift Bags – Employee Rights/ Labour Relations

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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.