By: Cary Burke and Olivia Jenkins

As labor watchers have come to expect over the past few years, the National Labor Relations Board saved some of its most consequential decisions for release in late December.  In a slew of rulings, the Board significantly broadened the categories of damages available to aggrieved employees, re-opened the door to the formation of “micro-units,” and gifted contractors increased access to private employer-owned property.  These changes to settled law follow the Board’s employee-friendly actions throughout the year.  Below, we briefly touch on some of the most impactful decisions from a very busy 2022.  And in a companion post, we’ll run down what we think employers might expect from the Board in 2023.

Increased Damages Available to Aggrieved Employees

The Board kicked off its now-expected December flurry by drastically expanding the pool of damages an aggrieved employee may recover upon an unfair labor practice finding.  In Thryv, Inc., 372 NLRB No. 22 (Dec. 13, 2022), the Board majority ruled that any “make-whole remedy” must include compensation for any “direct or foreseeable pecuniary harm.”  Such compensation, per the Board, may very well include things like credit card penalties or out-of-pocket medical expenses, to the extent a terminated employee was not able to pay their credit card debt because they lost their income stream (or lost their health insurance).  To be sure, the General Counsel must put on evidence of these costs and expenses.  This ruling, though, may significantly expand an employer’s liability beyond lost earnings and benefits. 

The Return of the Micro-Unit

In an expected, yet unwelcome, decision, the Board majority re-opened the door to the organization of “micro-units” of employees.  In American Steel Construction, 372 NLRB No. 23 (Dec. 14, 2022), the majority overruled PCC Structurals, 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019) – two Trump Board decisions — and returned to its previous test to determine whether additional employees must be included in a petitioned-for unit in order to render it an appropriate bargaining unit.  Under this reinstated test, a petitioned-for-unit will be found to be an appropriate unit if it is “readily identifiable as a group” and the workers share a “community of interest.”  In simple terms, the return to this analysis (known as the Specialty Healthcare test) will make it easier for unions to organize a subgroup of an employer’s business, like a group of cashiers within a grocery store.

Contractor’s Section 7 Rights Trump Employer’s Private Property Rights

Rounding out its trio of late-December decisions, the Board narrowed the instances in which an employer may limit access to off-duty contractors.  In another return to an Obama-era test, this time from the Board’s decision in New York, New York Hotel & Casino, 356 NLRB 907 (2011), the Board ruled that an employer may only limit a contractor employees’ right to access the employer’s property where the employer demonstrates that 1) the employees’ protected concerted activity “significantly interferes” with the employer’s use of its property; or 2) the employer sets out a legitimate business reason to exclude the employees from its property, like a demonstrated and specific need to maintain production.  This reinstated standard will likely result in increased contractor organizing activity on employer property.

Employers Must Continue Dues Checkoff Provisions Post-CBA Expiration

In another about-face, the Board reversed its Valley Hospital Medical Center, 368 NLRB No. 139 (2019) (Valley Hospital I) decision and held that employers must continue to follow union dues checkoff provisions after the expiration of a collective bargaining agreement until either the parties reach a new agreement or come to impasse.  Valley Hospital Medical Center Inc., 371 NLRB No. 160 (September 30, 2022) (Valley Hospital II).  In a vigorous dissent, Members Kaplan and Ring argued that this change to Board law impermissibly interfered with the bargaining process by “eliminating one of employers’ legitimate economic weapons” to persuade unions to agree to a successor collective bargaining agreement.

Weingarten Rights Extended to Replacement Employees

In line with General Counsel Abruzzo’s stated goal to expand Weingarten rights, the Board held in Troy Grove, 371 NLRB No. 138 (August 14, 2022) that strike replacement workers are entitled to a witness during an investigatory interview that may lead to discipline.  We expect this decision is a mere beachhead for the General Counsel, who appears to be looking for an appropriate case to test whether Weingarten rights should apply to employees in a non-union workforce. 

NLRB Revises the Mail-Ballot Election Test

In an effort to keep up with the everchanging “new normal” of COVID 19 safety parameters, the Board altered its test for deciding when to conduct mail ballot elections.  Indeed, in September 2022, the Board held that Regional Directors must look to the Centers for Disease Control’s COVID 19 Community Level Tracker when deciding whether to proceed with an in-person election or order a mail-ballot election. To the extent the CDC’s tracker provides that community transmission is “high,” the Regional Director has the discretion, but not the obligation, to order a mail-ballot election.  It remains to be seen whether this decision will have a significant impact on the frequency of mail-ballot elections, particularly in light of the decline in COVID 19 transmission nationwide.

Without belaboring the point, the Board’s decisions this year skewed strongly in favor of employees and labor unions.  We expect this trend to continue in 2023, as the Democrats now hold a 3-1 Board majority.  In a coming blog post, we discuss what we expect from the Board in the coming months.  Stay tuned!