As has become common, the NLRB issued a number of notable decisions following election season (and the Georgia special election). Last month, it issued three notable decisions (following a few notable actions last Fall) and Congress increased its funding by $25M at the end of the month. Among other things, it will for the first time permit successful charging parties to recover more than back pay for harm incurred from NLRA violations (i.e., compensatory damages). It will also presume that off duty employees of contractors cannot be excluded from private property if they are engaged in protected concerted activities. And, it will permit unions to form units based on who wants to join, which could result in a proliferation of bargaining units.
On December 13, 2022, the NLRB sua sponte expanded
the type of financial relief that a successful employee may recover after
filing an unfair labor practice (but without ever using the term, compensatory
damages). Thryv, Inc., Nos. 20–CA–250250 and 20–CA–251105. The
employer was found to have unlawfully and unilaterally laid off six employees without
first bargaining in good faith to impasse with the union. As “make whole relief,” and without such a
request from the union or any of the affected the employees, the NLRB ordered
more than just reinstatement with back pay, which has been the traditional
remedy for decades. Rather, the Board
ordered the employer “to compensate affected employees for all direct or
foreseeable pecuniary harms that these employees suffer as a result of the
respondent’s un[1]fair labor practice.” In the civil litigation context, this is
called compensatory damages:
We conclude that in all cases in which our standard remedy would include an order for make-whole relief, the Board will expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice. As we explain below, any relief must be specifically calculated and requires the General Counsel to present evidence in compliance demonstrating the amount of pecuniary harm, the direct or foreseeable nature of that harm, and why that harm is due to the respondent’s unfair labor practice. The respondent, in turn, will have the opportunity to present evidence challenging the amount of money claimed, argue that the harm was not direct or foreseeable, or that it would have occurred regardless of the unfair labor practice.
The Board then discussed the reason for its radical change
in more than five long pages.
Three days later, the NLRB decided to return to the
Obama-era standard for excluding individuals from private property. In Bexar County
Performing Arts Center Foundation, No. 16–CA–193636,
the Board “abandoned” the current legal standard and returned to the old:
Under the New York New York test, a property owner may lawfully exclude from its property off-duty employees who regularly work on the property for an onsite contractor and who seek to engage in Section 7 activity on the property only where the property owner is able to demonstrate that the contractor employees’ Section 7 activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline.
In this case, union musicians wanted to enter a theatre which
the ballet company (and the San Antonio Symphony and Opera San Antonio) leased
in order to publicize their dispute with leaflets with the ballet company,
which had opted to use recorded music instead of the union musicians for its
performance of Sleeping Beauty. The
theatre (and city police) prohibited the musicians from leafletting at the
theatre or the sidewalk and pushed them across the street.
The Board saw
no reason why contractor employees—just because their employer does not own the property where they regularly work—should not enjoy a similar opportunity to exercise their statutory rights at the place where they regularly work.
Accordingly, the Board found that the theatre violated the
musicians’ rights under the NLRA:
by preventing the Symphony employees from distributing flyers on the sidewalk in front of the Tobin Center on the Respondent’s property about Ballet San Antonio’s use of recorded music, which deprived the Symphony employees of the work of performing that music live. The Symphony employees work regularly at the Tobin Center, and the Respondent has not demonstrated that the leafleting would have significantly interfered with the use of its property or that it had another legitimate business reason for denying them access.
On December 14, the Board relaxed the standard for
determining the scope of a bargaining unit and returned to the Obama-era
standard from Specialty Healthcare: “where a labor union seeks to
represent a unit that contains some, but not all, of the job classifications at
a particular workplace.” In other words,
the union can decide to “organize” only those employees who want to join and
exclude the rest (who, presumably, would vote against the union and prevent it
from obtaining majority support necessary to form a new unit). American
Steel Construction, Inc., No. 07–RC– 269162. These
are sometimes referred to as microunits.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
