In a December 13, 2022 ruling involving employer Thryv, Inc., the National Labor Relations Board’s (NLRB) panel embraced a concept asserted by the NLRB’s prosecutorial arm which expands available remedies for employees claiming they are victims of discrimination and retaliation. By making available consequential damages for actual and foreseeable harm resulting from conduct alleged to be unlawful, the NLRB is looking beyond mere out of pocket loss.
In a recent article, the National Labor Relations Board (“NLRB”) reported that during the first six months of 2022, union representation petitions filed at the NLRB increased 58%—up to 1,892 from 1,197 during the first half of 2021. (https://www.nlrb.gov/news-outreach/news-story/correction-first-three-quarters-union-election-petitions-up-58-exceeding). The NLRB also reported that in 2021, 52% of petitions filed resulted in a victory for the union as compared to only 46% in 2020. (https://www.nlrb.gov/reports/nlrb-case-activity-reports/representation-cases/intake/representation-petitions-rc).
For the first time in years the NLRB’s five-member Board, which decides cases and enacts regulations, has a Democratic majority. The Board will decide cases as presented. It is expected that case rulings will revise legal standards applicable to the workplace and reverse decisions from the previous Administration and the previous Republican majority on the Board.
As you know I sit as a legislative appointee to the California Committee on the Employment of Persons with Disabilities (CCEPD) and am newly appointed to and elected chair of the inaugural panel of the IACA Standing Committee for People with Disabilities authorized by the Legislature to develop standards for individuals with Disabilities in apprenticeship, with a focus on non-construction industries. In the course of my service I have worked directly with the Agency leaders of the California Future of Work Commission which has just released its initial report.
Before taking office President Biden identified former Boston Mayor and Building Trades official Martin Walsh as his nominee to serve as Secretary of Labor. Assuming the Senate confirms, the Secretary of Labor will carry significant weight on labor policy and enforcement involving issues including wage and hour, employee benefits, union and management reporting, workplace safety, and hot topic issues such as independent contractor misclassification.
In a 1975 case called NLRB v. J. Weingarten, the U.S. Supreme Court first set forth employees’ rights to representation during an employer interview. Over the past 43 years, these “Weingarten rights” have been refined by the National Labor Relations Board and the courts. Weingarten rights issues still arise and are still litigated. For instance, last year the D.C. Circuit Court of Appeals held that Weingarten rights did not apply when an employee was put on paid suspension pending an investigation (Bellagio v. National Labor Relations Board) or when an employee participated in a non-compulsory interview with a peer review committee (Midwest Division-MMC, LLC. v. National Labor Relations Board).
On February 20th, the United States Supreme Court ruled that in a collective bargaining agreement, no ambiguities should be interpreted by the absence of a provision concerning the duration of retirees’ healthcare benefits. Benefits clearly expire when the collective bargaining agreement itself expires. The Supreme Court’s decision, CNH Indus. N.V. v. Reese, was unanimous.
The National Labor Relations Board is considering modifying its case processing procedures in ways that could benefit employers, according to an internal NLRB memorandum obtained by the paid subscription service Bloomberg Law.
The National Labor Relations Board gained a Republican majority less than three months ago, but has already disposed of many of the prior Administration’s labor law rules. Just this past week, the NLRB issued 13 decisions, including several important rulings favorable to employers. This bevy of rulings is understandable, given that NLRB Chairman Philip Miscimarra, a Republican, retired on Friday.
Last week, the U.S. Senate confirmed Peter Robb as General Counsel for the National Labor Relations Board (NLRB). Robb previously represented employers in labor law matters. As General Counsel, Robb will oversee the NLRB in its headquarters in Washington, DC and in its field offices throughout the country. The NLRB’s former General Counsel, Obama-appointee Richard Griffin, had previously served as ...
Other AALRR Blogs
- National Labor Relations Board Adopts Expansive Test for “Joint-Employer” Status
- NLRB Ruling Curbing Right of Property Owners to Control Contractors’ Employees Warrants Careful Attention
- NLRB Adds Compensatory Damages to Its Scope of Remedies
- Widespread Efforts to Organize Require Employer Preparation
- How to Ensure Your Employee Handbook Does Not Infringe on Union Rights
- Changes at NLRB forecast major challenges ahead for employers and expansion of rights for employees and labor unions
- The Future of Work (And Workforce Enforcement)
- NLRB Policy Shakeup: President Biden’s Notable Changes at the NLRB Could Signal a Change in Board Policy for Years to Come
- Labor Law Change Coming Soon in Biden Administration
- Private-Sector Employers Unaffected by the Supreme Court’s Janus Decision on Union Dues