24 January 2023

New Year, New NLRB Updates

How did the Board celebrate the end of 2022, you ask? In case you had higher priorities in late December than tracking the NLRB’s activities and therefore missed it, the Board came down with three significant, pro-employee rulings. Not surprisingly, two of these decisions were reversals of Trump-era precedent. Additionally, and perhaps most significantly, the third decision represents an entirely new rule, where the Board for the first time ever expanded its traditional “make whole” remedy to include consequential damages.

Both cases that overruled Trump Board precedent, American Steel Construction and Bexar County II, reinstated Obama-era standards. The first, American Steel Construction, reinstated the Obama Board’s test for approving “micro-units,” thereby allowing unions to organize smaller groups—historically an easier lift for organized labor. Employers may feel a sort of whiplash on this issue, as American Steel marks the Board’s third decision on micro-units since 2011, when the Obama Board overruled decades-long precedent by permitting such units. Next, Bexar County II, held that property owners can prohibit off-duty contract workers from protesting on their property only if they show the activity would significantly interfere with the use of the property, or some other legitimate business reason. Keeping with this Board’s general theme, this marked a reversal of a Trump-era rule that allowed property owners to prohibit contract workers from protesting on their property unless they worked regularly and exclusively on the property and the owner failed to show a reasonable, non-trespassory alternative for the workers to communicate their message.

Finally, the Board significantly expanded its longstanding make-whole remedy. When employers have traditionally been ordered to make an individual whole, they were typically responsible for ordinary backpay, lost benefits, and/or reinstatement. Now, under Thryv, Inc. employees may also recover consequential damages, meaning additional direct or foreseeable financial harm. According to the Board, such damages may include any increases in premiums, copays, coinsurance, deductibles, unpaid medical bills, credit card interest and late fees, penalties for early withdrawals from retirement accounts to cover living expenses, higher transportation or childcare costs, and even the loss of a vehicle or home if the employee is unable to make required payments. This clearly greatly expanded what employers may be responsible for if they unlawfully terminate an employee.

In Thryv’s framework, the General Counsel must present evidence of the consequential damage’s amount, its direct or foreseeable nature, and causation from the employer’s unfair labor practice. The burden will then shift to the employer to challenge the amount, the direct/foreseeable nature of the harm, or argue that it would have occurred regardless of the employer’s ULP. Generally, the parties can also stipulate to some damages, such as back pay, and still challenge other damages, such as the loss of a house or credit card late fees. The Board is applying Thryv retroactively. Hence, employers with cases already pending before the Board decided Thryv may be ordered to pay consequential damages.

It’s clear the Board had a busy late-December. So, if you have any questions about these decisions or how they may impact your business, please reach out to the author or another labor attorney at Miller Johnson.

Contact the author Bridget McConville.