NLRB Gifts Employees Expansive Remedies in Time for the Holiday Season

“You get more remedies! You get more remedies! Everybody gets more remedies!”

Employers found to have committed an unfair labor practice (ULP) now may be required to compensate employees for interest and late fees on credit cards, penalties for early withdrawals from retirement accounts, out-of-pocket medical expenses, and other costs incurred to make ends meet. The National Labor Relations Board (NLRB or Board) recently held that employers must compensate employees for all direct or foreseeable pecuniary harms suffered as a result of the employer’s ULP. Thryv, Inc., 372 NLRB No. 22 (issued Dec. 13, 2022).

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To Deduct or Not To Deduct – NLRB Revisits Union Dues Checkoff Post-CBA Expiration


Whether employers must continue to deduct union dues from employees’ paychecks and forward such deductions to the union (i.e., a “dues checkoff” provision) after the expiration of a collective bargaining agreement (CBA) is of critical importance in the negotiation process. Not having to deduct union dues is a powerful weapon for an employer to force a union to be reasonable at the bargaining table, since the union’s income stream with respect to the bargaining unit is cut off. By contrast, if the dues checkoff requirement survives the expiration of a CBA, there is much less incentive for the union to get a deal done since it is essentially “playing with the house’s money.”

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NLRB Upholds Employers’ Right to Restrict Employees’ Email Use for Union Organizing – for Now

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The issue of whether an employer can ban its employees from using the company email system for union organizing has been the subject of heated litigation before the National Labor Relations Board (NLRB or Board). Since its 2007 decision in Register Guard, 351 NLRB 1110, the Board has vacillated between finding that such bans unlawfully infringe upon employees’ right to engage in protected concerted activity (Purple Communications, Inc., 361 NLRB 1050 (2014)) and upholding such restrictions as protecting employers’ property rights (Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019)). In the most recent case, T-Mobile USA, Inc. & Communications Workers of America, NLRB, 14-CA-155249 (Sept. 30, 2022), a three-member NLRB panel – made up of the Board’s two Republicans and one of the Board’s three Democrats – found that T-Mobile unlawfully disciplined an employee when it (1) selectively and disparately enforced its email policy against an employee for sending a union-related email, (2) established rules prohibiting mass emails for nonbusiness purposes in response to the employee’s union activity, and (3) told the employee that employees could not send union-related emails to work addresses.

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Unlawful Harassment or Protected Concerted Activity?

We’ve all heard before that consistency is the key to success. The U.S. Court of Appeals for the District of Columbia Circuit’s decision in Constellium Rolled Products Ravenswood, LLC v. NLRB, No. 21-1191 (D.C. Cir. 2022), illustrates this simple but crucial principle. In a 2-1 decision, the court held that the National Labor Relations Board (NLRB or Board) had sufficient justification for its finding that Constellium Rolled Products (Constellium) committed an unfair labor practice when it terminated an employee who wrote “whore board” on an overtime sign-up sheet.

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Employers Beware: NLRB Remedies Likely to Be More Expansive Moving Forward

Human hand taking fan of banknotes from various counties on dark background

For the first time in over three decades, the National Labor Relations Board (NLRB or Board) has ordered an employer to reimburse employees for wages they lost while attending negotiation sessions on behalf of the union. Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118 (2022). The Board found that the employer involved in the case had bargained in bad faith by having a “take-it-or-leave-it attitude” during contract negotiations. While Republican Board member Marvin Kaplan dissented from the granting of this extraordinary remedy, the Board majority (composed of Democratic Board members Lauren McFerran and David Prouty) found it appropriate because the employer was a repeat offender that had been “previously warned by the Board that extraordinary remedies might be imposed if it continued to engage in unlawful conduct.” The Board furthermore ordered the employer to reimburse the union for its bargaining expenses from January 2019 through the date that good faith negotiations begin.

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Joint Employer Test Must Consider ‘Reserved or Indirect Control,’ D.C. Circuit Rules

Still-life of chairs in big stylish conferenceroom

In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released.It’sa two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub.

On Friday, the D.C. Circuit Court of Appeals issued a different kind of smackdown, chastising the National Labor Relations Board (NLRB) for ignoring the Circuit Court’s earlier directive about the joint employer test. Believe it or not, this case is another chapter in the ongoing Browning-Ferris saga.

Read the full article on the Employment Law Spotlight.

Third Circuit Tells the NLRB to Lighten Up and Take a Joke

The U.S. Court of Appeals for the Third Circuit has found that Ben Domenech, executive officer and publisher of the right-leaning media company The Federalist, did not threaten employees when he tweeted that he would send them “back to the salt mine” if they unionized, in FDRLST Media LLC v. NLRB, Case No. 20-3434.

Domenech’s tweet came the same day that unionized employees of Vox Media (a left-leaning competitor of The Federalist) walked off the job during contract negotiations. In response to the report, Domenech tweeted “FYI @[the Federalist] first one of you tries to unionize I swear I’ll send you back to the salt mine.” Domenech’s tweet went out to the feeds of more than 80,000 Federalist followers. 

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Stacking the Deck: NLRB General Counsel Seeks Union-Friendly Labor Law Reform in Card Check Recognition Procedure

In what can only be viewed as tilting the odds in favor of organized labor, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo recently filed a brief with the five-member, Democratic-controlled Board in a case pending on appeal – Cemex Construction Materials Pacific, LLC – to request the reinstatement of the Joy Silk doctrine.

As previously discussed here, this policy – which was rejected by the NLRB more than 50 years ago – would make it unnecessary, with limited exceptions, for a union to win an NLRB-conducted election in order to represent a group of employees. Instead, the union would simply need to obtain authorization cards from a majority of workers (i.e., 50% plus one) to gain recognition.

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NLRB General Counsel Seeks to Outlaw Employer Use of Captive Audience Meetings

On April 7, 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued what may be her most pro-union directive to date – and that’s saying something.

In GC Memorandum 22-04, Abruzzo announced her intention to seek a ban on employer mandatory meetings during union organizing campaigns, commonly referred to as “captive audience meetings.” According to Abruzzo, captive audience meetings are coercive, in and of themselves, because they “inherently involve an unlawful threat” to employees if they exercise their allegedly “protected” right under the National Labor Relations Act (NLRA) “not to listen” to their employer’s message.

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The Times Are A-Changing for Employer Handbooks … Soon

As we previously reported, the National Labor Relations Board (the Board) invited public comment in January on whether it should overrule its current standard for determining the lawfulness of employee handbook policies and work rules. That standard – which applies in both union and nonunion workplaces – was adopted by the Board during the Trump administration in Boeing Co., 365 NLRB No. 154 (2017). In general, the Boeing standard balances a challenged rule’s impact on employee rights against the employer’s legitimate justifications for adopting the rule. Once this balancing analysis is complete, the Board places a challenged rule into one of three categories: (1) those that are always lawful to maintain, (2) those that are always unlawful to maintain and (3) those that must be analyzed on a case-by-case basis.

The due date for submitting briefs to the Board on this hotly contested issue expired last week, on March 7. As expected, current NLRB General Counsel Jennifer Abruzzo filed a brief urging the Board to reject the Boeing standard and to return to the prior, Obama-era test for evaluating work rules and employment policies. That standard, referred to as the “Lutheran Heritage” standard after the name of the case in which it was adopted, gave little consideration to an employer’s justification for adopting a facially neutral rule or policy. Instead, the Board focused on whether the rule might be “reasonably construed” by employees to restrict their right to engage in activity protected under the National Labor Relations Act (NLRA). If so, challenged rules and policies typically were held to be unlawful.

Application of the Lutheran Heritage standard resulted in a number of surprising decisions that ignored the practical and real-life circumstances of a workplace. For example, in Hills & Dales General Hospital, 360 NLRB 611 (2014), the Board held that a rule requiring employees to represent the employer “in a positive and professional manner at every opportunity” was overly broad and unlawfully ambiguous. In T-Mobile USA, Inc., 363 NLRB No. 171 (2016), the Board found that an employer violated the NLRA by maintaining a policy that required employees “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.” In The Roomstore, 357 NLRB 1690 (2011), the Board found that a rule prohibiting “[a]ny type of negative energy or attitudes” violated the NLRA. Applying the Lutheran Heritage standard, the Board found in each of these cases that employees might reasonably construe the challenged work rule to apply to activity protected under the NLRA, with little regard for the employer’s motives for maintaining such policies.

As troubling as these decisions are, a return to the Lutheran Heritage standard under the current Board may be even worse for employers. As noted above, the Lutheran Heritage standard focused on whether employees might “reasonably construe” a challenged rule to restrict their right to engage in protected activity under the NLRA. If General Counsel Abruzzo has her way, the boundaries of what constitutes NLRA-protected activity will be greatly expanded in the next few years to encompass political advocacy, social justice and a wide array of other such issues. The expansion of NLRA protections to issues that have historically been viewed as unrelated to the workplace would render the Lutheran Heritage standard even more unpredictable.Takeaway: While the Board is not projected to issue its revised work-rule test for several months, union and nonunion employers alike should begin preparing for an unfavorable change in the law by reviewing their current work rules and handbooks.