The union-side labor bar had high expectations for the Biden administration after the new president fired President Donald Trump’s National Labor Relations Board (NLRB or “the Board”) General Counsel Peter Robb the day he took office. With the 2021 appointments of Jennifer Abruzzo as general counsel, and Gwynne Wilcox and David Prouty to serve with Chair Lauren McFerran as the Democratic members of the Board, the president’s party has had the majority since Prouty’s confirmation on July 28, 2021.
After more than a year with a Democratic majority but few reversals of the many significant Trump-era Board decisions, some in the union-side labor bar were beginning to question the delay. In mid-December, it became clear that one reason was that the Board was holding onto decisions to permit Member John Ring to draft dissents before his term expired on Dec. 16, 2022. There are, of course, other reasons for the perceived delay: the Board has, consistent with McFerran’s routine dissents during the Trump era, solicited notice and invitation for amicus briefs in a number of high-profile cases; and, setting aside rulemaking, the Board can only act when there is a case in front of it that raises the question. In a flurry of orders that month, the Board issued significant decisions regarding the scope of make-whole remedies, the standard for an appropriate bargaining unit employer interrogation of Section 7 conduct to prepare for a Board proceeding, and access of off-duty employees of a contractor to a worksite owned by a different employer. Each is discussed below.
Make-Whole Remedies
In
Thryv, Inc., 372 NLRB No. 22 (Dec. 13, 2022), the Board clarified the scope of make-whole relief under the National Labor Relations Act (“NLRA” or “the Act”), holding that its standard “make whole-whole remedy shall expressly order respondents to compensate affected employees for all direct or foreseeable pecuniary harms that these employees suffer as a result of the respondent’s unfair labor practice.” The majority described a number of potential pecuniary harms, including “interest and late fees on credit cards, or penalties [for] early withdrawals from her retirement account in order to cover her living expenses[,] [loss of] her car or her home, if she is unable to make loan or mortgage payments . . . [,] increased transportation or childcare costs . . . out-of-pocket medical expenses, credit card debt, or other costs simply in order to make ends meet.”
The determination of such remedies is left largely to the compliance stage, and the Board confirmed that the procedures and burdens of proof for compliance proceedings are otherwise unchanged: for instance, the Board will not award remedies for foreseeable losses that are “unquantifiable, speculative, or nonspecific,” and ambiguities will be resolved against the respondent.
Appropriate Bargaining Units
In
American Steel Construction, 372 NLRB No. 23 (Dec. 14, 2022), the Board returned to the Obama-era standard from
Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enf’d sub nom.
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013) (“
Specialty Healthcare”) for cases where a union petitions to represent only some of the job classifications at a workplace (sometimes referred to as “micro-units”). This overrules the Trump-era standard under
PCC Structurals, Inc., 365 NLRB No. 160 (2017), and
The Boeing Co., 368 NLRB No. 67 (2019) (collectively, “
PCC-Boeing”).
Under both standards, the petitioned-for unit had to have an internal community of interest, and consideration had to be given to the Board’s approach to the particular industry involved; the difference between the approaches lies in what constitutes a “sufficiently distinct” unit. The rule in
Specialty Healthcare and affirmed in
American Steel Construction requires that an employer that contends that a petitioned-for bargaining unit is underinclusive make a heightened showing that the petitioned-for unit shares an “overwhelming community of interest” with the additional employees it argues should be included in an appropriate bargaining unit. In the absence of such a showing, an otherwise-appropriate unit would be considered “sufficiently distinct.”
PCC-Boeing, in contrast, held that a petitioned-for group was sufficiently distinct from excluded employees only where “excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.”
This issue — which was hotly contested following the Board’s decision in
Specialty Healthcare — is likely to continue to be a source of litigation before the Board and in the Circuit Courts of Appeals.
Employer Interrogation Regarding Section 7 Activity
In
Sunbelt Rentals, 372 NLRB No. 24 (Dec. 15, 2022), the Board reaffirmed the standard from
Johnnie’s Poultry, 146 NLRB 770, 775 (1964), enf. den’d 344 F.2d 617 (8th Cir. 1965) for evaluating whether an employer interrogation regarding Section 7 conduct in preparation for a Board proceeding is coercive.
Johnnie’s Poultry requires that the employer give specific safeguards and warnings to the employee or else engage in a per se violation of the Act when it conducts an interrogation to prepare its defense for a Board proceeding. The Board had previously solicited briefs on whether to adopt
Johnnie’s Poultry or another approach such as the “totality of the circumstances” standard from
Rossmore House, 269 NLRB 1176 (1984), enf’d sub nom.
Hotel & Restaurant Employees, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), under which the employer can construct post hoc arguments about whether a reasonable person would be coerced by the questioning.
Under the current standard, “the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees.”
Noting that “such interrogations are highly likely to be coercive because they are conducted by an employer that is accused of unlawfully interfering with employees’ Section 7 rights and is seeking information to vindicate itself,” and that such interrogations potentially implicate the Board’s own interests in preventing Section 8(a)(4) violations, the Board held that an employer that fails to abide by the requirements set out in
Johnnie’s Poultry while questioning an employee to prepare for a Board proceeding commits a per se violation of Section 8(a)(1). Because of these special interests, the per se rule set out in
Sunbelt Rentals does not extend to interrogations other than those undertaken for an employer’s preparation for a Board proceeding.
Access for Off-Duty Employees of an Off-Site Contractor
The Board, in
Bexar County Performing Arts Center Foundation, 372 NLRB No. 28 (Dec. 16, 2022) (“
Bexar II”), overruled a Trump-era decision in the same case (368 NLRB No. 46 (2019) (“
Bexar I”)), and returned to the access standard for off-duty employees of an on-site contractor set out in the Obama-era Board decision
New York, New York Hotel & Casino, 356 NLRB 907 (2011), enf’d 676 F.3d 193 (D.C. Cir. 2012), cert. denied 568 U.S. 1244 (2013).
Bexar II brings back the standard that a “property owner may lawfully exclude [off-duty contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his 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 (as those terms have come to be defined in the Board’s case law).”
Property access under the Act is, of course, a complex subject with varied rules depending on the employer’s interest (e.g., property interests versus managerial interest), the identity of the purported trespasser (i.e., on- vs. off-duty employee, nonemployee union organizer), the nature of the conduct (e.g., leafletting, authorization card solicitation, picketing), and even the type of employer (hospital, retail) or location within the workplace (working vs. nonworking areas). Conceptually,
Bexar II grounds the property-owning employer’s interest primarily in its managerial — rather than property — interest, and seeks to accommodate that interest with the contractor employees’ nonderivative Section 7 rights to engage in protected concerted activity in their own workplace. The
Bexar II majority stressed the practical issues of securing Section 7 rights in a workplace owned and controlled by a different employer, noting that “[t]he right of employees to engage in Section 7 activity at their workplace is critical for them to realize the protections afforded under the Act . . . . A law designed to empower employees to improve working conditions at their workplaces must provide employees with rights at those workplaces.”
In opposition, the dissent by Members Ring and Kaplan, who were in the
Bexar I majority, argues that the Board should apply the analysis in
Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), which addresses the access rights of nonemployee union organizers to a worksite and sets out a rule that permits access only where no reasonable nontrespassory alternative exists. As the majority points out, this approach would collapse the distinction between the derivative Section 7 rights nonemployee union organizers possess under the Act and the nonderivative rights employees of a contractor possess, effectively treating employees of a contractor as strangers even when their only workplace is on a site owned by the property-owning employer.
As the Board noted, the issue addressed in
Bexar I and
Bexar II — under what circumstances a property-owning employer violates the Act by expelling off-duty employees of a contractor exercising their Section 7 rights — is likely to arise more and more as the workplace grows more fissured.
What to Expect in 2023
These Board decisions issued in rapid succession in mid-December leave out several potentially significant cases that are expected to be released soon. The Board has invited and received amicus briefs in cases involving the standard for evaluating confidentiality clauses in arbitration agreements and savings clauses to except Board charges from arbitration agreements,
see Ralphs Grocery Company 371 NLRB No. 50 (2021); the standard for determining whether an employer’s work rules — including investigative confidentiality rules — violate the Act,
see Stericycle, Inc. 371 NLRB No. 48 (2021); and the standard for distinguishing employee and independent contractor status under the Act,
see The Atlanta Opera, Inc. 371 NLRB No. 45 (2021). Decisions in these cases may reverse precedent set by the Trump-era Board on a broad range of issues under the Act.
Ryan McGovern Quinn is an associate at Segal Roitman LLP. He represents unions, employee benefit plans and employees in collective bargaining, arbitration, administrative hearings and litigation. Before attending law school, Quinn represented early childhood education, higher education and human services workers as vice president of United Auto Workers Local 2322 in Western Massachusetts. Quinn is an adjunct professor at Northeastern University, teaching labor and employment law. He is a graduate of the Northeastern University School of Law and the UMass Amherst Labor Center.