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The National Labor Relations Board (NLRB or Board) has been very busy issuing a series of pro-union decisions just in time for the holidays. First, the Board issued a significant decision in Thryv, Inc. on Tuesday December 13, 2022, expanding available damages for employees subject to unfair labor practices. Details on that decision can be found here.

On December 14, 2022, the Board issued a decision in American Steel Construction, Inc. The NLRB modified the test used to determine if additional employees must be included in a petitioned for bargaining unit to make the unit appropriate for collective bargaining purposes. Now, the burden is on the party trying to include additional employees in a particular unit to show that those additional employees share an “overwhelming community of interest” in order to be included in the bargaining unit. This is a return to the Obama-era Specialty Healthcare standard that allows unions to organize smaller groups of employees of a particular employer. Thus, less votes are needed to certify the union, making it easier for unions to organize initially and expand later.

Next, On December 15, 2022, the NLRB reaffirmed its long-standing Johnnie’s Poultry standard in the Sunbelt Rentals, Inc., case. This case reaffirmed the standard that requires employers who are interviewing employees in relation to an unfair labor proceeding before the NLRB to: “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.”

Finally, on December 16, 2022, the NLRB handed down its decision in the Bexar County Performing Arts Center Foundation case (Bexar County II). In this case, the NLRB overturned its 2019 Bexar County I decision and modified the standard for off duty employees of an onsite third-party contractor, returning to its 2011 decision in New York, New York Hotel and Casino. In this case, the owner of a performing arts center barred off-duty San Antonio Symphony employees, who performed at the center, from accessing the center’s property to engage in Section 7 activity. In its decision, the NLRB made clear that a property owner now may only limit off duty employees of onsite contractors from its property who are engaged in protected concerted activity if that activity would significantly interfere with the owner’s use of the property, or where exclusion is justified by another legitimate business reason such as maintaining production and discipline.

All of these cases were decided by a 3-2 split, with the Democratic-appointed members voting as the majority and the Republican-appointed members making up the dissent. These decisions are troublesome for employers as the NLRB looks to be on a pro-union bender headed into the new year. If you have questions concerning these recent decisions, please feel free to contact one of our labor and employment attorneys by calling (501) 371-9999.

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