In a flurry of December 2022 decisions, the National Labor Relations Board (NLRB) made some meaningful changes to federal labor law favoring unions. These decisions added consequential damages to the NLRB’s make-whole remedy, made organizing easier for unions, and prioritized employees’ labor rights over businesses’ property rights. 

Consequential Damages (Thryv, Inc. & Int’l Bhd. of Elec. Workers, Loc. 1269, 372 NLRB No. 22 (Dec. 13, 2022))  

The NLRB’s standard make-whole remedy required employers to compensate workers with back pay and lost benefits. However, the addition of consequential damages now requires employers to “compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of [] unfair labor practice[s].” By satisfactorily establishing 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 NLRB may now seek a bevy of additional damages, including “out-of-pocket medical expenses, credit card debt, or other costs simply in order to make ends meet.” 

While the scope of what the NLRB may seek as consequential damages remains unclear, the NLRB expressly noted in Thryv that the addition of consequential damages does not “reflect[] the limits of the Board’s statutory remedial authority or that some other form of make-whole relief might not also be necessary in a future case.” 

The modified make-whole remedy applies prospectively and retroactively to “all pending cases in whatever stage” before the NLRB. 

Increased Likelihood Of Micro-Units (Am. Steel Constr., Inc., 372 NLRB No. 23 (Dec. 14, 2022))

The NLRB reinstated its Obama-era Specialty Healthcare standard for determining the appropriateness of a bargaining unit representing only a portion of an employer’s workforce. The NLRB returned to approving a petitioned-for subset of a classification of employees if the petitioned-for unit (1) shares a community of interest; (2) is readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and (3) is sufficiently distinct. For more on the American Steel decision and its practical implications for employers, see this bulletin from Taft attorneys Doug Anspach and Grant Gibeau. 

Employees’ Labor Rights Outweigh Businesses’ Property Rights (Bexar Cnty. Performing Arts Ctr. Found., 372 NLRB No. 28 (Dec. 16, 2022))

In Bexar County Performing Arts Center, the NLRB revived its New York New York Hotel & Casino standard for determining when a property owner may deny an on-site contractor’s off-duty employees seeking to engage in protected, concerted activity on its premises access to the property. In 2019, the Trump Board established that a third-party property owner could deny access to off-duty employees of an on-site contractor seeking to engage in protected, concerted activity unless (1) the employees worked both regularly and exclusively on the property; and (2) the property owner could not demonstrate that reasonable, non-trespassory means existed for the employees to communicate their message. 

The D.C. Circuit Court rejected this standard and remanded the case to the NLRB for reconsideration. On remand, the Biden NLRB resurrected the New York New York Hotel & Casino standard, under which a property owner may only prohibit off-duty contractor employees who regularly work on the property from accessing the premises to engage in protected, concerted activity if the property owner establishes that (1) the employees’ activity significantly interferes with its use of the property; or (2) another legitimate business reason justifies the exclusion, including the need to maintain production and discipline. This decision will make it more difficult for a property owner to lawfully exclude off-duty, on-site contractor employees from accessing its private property to engage in protected, concerted activity. 

Consult Taft’s Employment and Labor Relations attorneys for up-to-date guidance on these and other NLRB decisions.