In Fiscal Year 2022 (October 1, 2021-September 30, 2022), 2,510 union representation petitions were filed with the National Labor Relations Board, which protects the right of private sector workers to form or join a union. This is a 53% increase from 2021, and the highest number of union representation petitions filed since 2016.
In a decision issued on December 13th 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 harm” suffered because of those unfair labor practices. 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. “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.
In a decision issued on December 16th in Sunbelt Rentals, Inc. case, the Board reaffirmed its longstanding approach to protecting employees from coercion when they are interviewed by employers preparing for unfair labor practice proceedings before the Board. The standard, first adopted in 1964 in Johnnie’s Poultry, requires that before an employee may interviewed in connection with an unfair labor practice case, the “employer must communicate to the employee 1) purpose of the questioning, 2) assure him that no reprisal will take place, and 3) 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.
In Troutbrook Company, LLC, also issued on December 16th, the Board held that an employer violates 8(a)(5) by insisting on resolving non-economic subjects before negotiating economic subjects. “As the Supreme Court explained long ago, a party’s refusal to negotiate about any mandatory subject violates [the law].” The Board has held that “[g]ood-faith bargaining entails exchange of views on all mandatory bargaining subjects.” All mandatory subjects of bargaining must be on the table because “[t]he very nature of collective bargaining presumes that while movement may be slow on some issues, a full discussion of other issues . . . may result in agreement on the stalled issues. ‘Bargaining does not take place in isolation and a proposal on one point serves as leverage for positions in other areas.’”
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