Board Modifies Standard Governing Off-Duty Workplace Access for Employees of Contractors

12/16/2022 12:30 PM EST December 16, 2022 Today, the Board issued a decision in Bexar County II, restoring the rights of workers employed by a contractor to engage in protected concerted activity in their workplace. The new decision overturns Bexar County I, 368 NLRB No. 46 (2019)—which was sent back to the Board for reconsideration by the D.C. Circuit Court of Appeals—and makes clear that a property owner may only exclude the employees of its contractors from engaging in protected activity on the worksite if such activity would significantly interfere with the use of the property, or where exclusion is justified by another legitimate business reason. Bexar County II thus reestablishes the standard originally articulated by the Board in New York New York Hotel & Casino, 356 NLRB 907 (2011). The Board reasoned—in line with the D.C. Circuit’s concerns—that the Bexar County I standard undermined contractor employees’ right to engage in protected concerted activity under Section 7 of the National Labor Relations Act without rational justification. Returning to the New York New York standard properly accommodates contractor employees’ rights under federal labor law with the property owner’s legitimate interests, and avoids creating incentives for employers to structure work relationships to avoid direct hiring. “For contractor employees, the right to exercise their Section 7 rights at their workplace – where they interact with their coworkers and are most impacted by their employer’s decisions—is critical to making the protections of the Act a reality,” said Chairman Lauren McFerran. “Today’s decision ensures that contract employees’ rights are protected and respected in a manner appropriate to the nature of their employment.” Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Kaplan and Ring dissented.

NLRB Protects Workers from Employer Coercion During Investigation of Unfair Labor Practice Complaints

12/15/2022 12:29 PM EST Today, the National Labor Relations Board issued a decision in Sunbelt Rentals, Inc., reaffirming its longstanding approach to protecting employees from coercion when they are interviewed by employers preparing for unfair labor practice proceedings before the Board. This decision follows the Board’s Notice and Invitation to File Briefs seeking public input regarding whether or not to adhere to the standard first adopted in 1964 in Johnnie’s Poultry, 146 NLRB 770 (1964), which found that such interviews violated the National Labor Relations Act unless the employer gave the employee specific assurances. After considering public comment, a Board majority consisting of Chairman McFerran and Members Wilcox and Prouty found that the Johnnie’s Poultry standard effectively balances employers’ legitimate need to prepare a defense to an unfair labor practice allegation with employees’ statutory right to engage in protected concerted activity free from employer interference, and decided to adhere to the Johnnie’s Poultry standard in whole. The standard states: “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.” “Today’s decision maintains a well-understood 58-year standard that has proven successful in balancing employer needs and employee rights, while protecting the integrity of the Board’s process,” said Chairman Lauren McFerran. “Because of the strong possibility of coercion in an employer interview about unfair labor practice issues, employees need protection. This familiar, bright-line test is easy for employers to comply with and brings certainty to the administration of the Act.” Members Kaplan and Ring dissented.

Board Modifies Framework for Appropriate Bargaining Unit Standard

12/14/2022 12:44 PM EST December 14, 2022 Today, the National Labor Relations Board issued a decision in American Steel Construction, Inc., in which the Board modified the test used to determine whether additional employees must be included in a petitioned-for unit in order to render it an appropriate bargaining unit. The decision returns the Board to its prior test governing such determinations, as set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), overruling PCC Structurals, 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019). In the decision, the Board reaffirmed its long-standing principle that employees in the petitioned-for unit must be “readily identifiable as a group” and share a “community of interest.” However, where a party argues that a proposed unit meeting these criteria must include additional employees, the Board reaffirmed that the burden is on that party to show that the excluded employees share an “overwhelming community of interest” to mandate their inclusion in the bargaining unit. “The Board’s task in assessing the appropriateness of bargaining units is to ensure that workers enjoy—in the words of the National Labor Relations Act— ‘full freedom of association,’” said Chairman Lauren McFerran. “Returning to the Specialty Healthcare standard is consistent with this principle, ensuring that workers have the ability to organize in the unit of their choosing, so long as it is not arbitrary or irrational.” The decision follows the Board’s Notice and Invitation to File Briefs asking parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining if a petitioned-for bargaining unit is an appropriate unit. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Kaplan and Ring dissented.

Board Rules Remedies Must Compensate Employees for All Direct and Foreseeable Financial Harms

12/13/2022 01:31 PM EST December 13, 2022 In a decision issued today in Thryv, Inc., the Board clarified its make-whole remedy to expressly ensure that workers who are victims of labor law violations are compensated for all “direct or foreseeable pecuniary harm” suffered as a result of those unfair labor practices. This decision follows the Board’s Notice and Invitation to File Briefs asking parties to weigh in on whether the Board should modify its make-whole remedy. The decision explains that, in addition to the loss of earnings and benefits, victims of unfair labor practices may incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. The Board determined that compensation for those losses should be part of the standard, make-whole remedy for labor law violations. The Board explained that the General Counsel will be required to present evidence in the compliance proceeding proving the amount of the financial harm, that it was direct or foreseeable, and that it was due to the unfair labor practice. The respondent employer or union would then have the opportunity to rebut that evidence. “Employees are not made whole until they are fully compensated for financial harms that they suffered as a result of unlawful conduct,” said NLRB Chairman Lauren McFerran. “The Board clearly has the authority to comprehensively address the effects of unfair labor practices. By standardizing the Board’s make-whole relief to fully include the direct or foreseeable financial harms suffered by affected employees we will better serve the important goals of the National Labor Relations Act.” This clarification to the Board’s remedy will apply in every case in which the Board’s standard remedy would include make-whole relief for employees. The Board will apply this remedy retroactively to all cases currently pending. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Ring and Kaplan dissented.

NINTH U.S. CIRCUIT COURT OF APPEALS

Employment Law Where the regional director of the National Labor Relations Board secured a preliminary injunction against an employer for alleged unfair labor practices, once National Labor Relations Board has resolved the merits of the unfair labor practice complaint, an appeal of the grant of the preliminary injunction was not moot since such a dispute is capable of repetition, yet evading review. The district court improperly determined that Frank v. HTH Corp. required it to presume irreparable harm based on its finding that the director had a likelihood of success on the merits on his claims. Hooks v. Nexstar Broadcasting - filed Dec. 5, 2022 Cite as 2022 S.O.S. 21-35252 For full text click link:http://sos.metnews.com/sos.cgi?1122//21-35252