December never is a “slow” month in “labor law land.” Even though offices are winding down and some are closing for the holidays, the National Labor Relations Board (the “Board”) always enjoys dropping a few seismic cases for unions/employees/employers to enjoy, huddling next to their fires. This year, the Board was in an especially giving mood, gifting two favorable decisions to unions and employees. 

First, the Board redefined what constitutes a “make whole” remedy, paving the way for damages above and beyond backpay, frontpay, and interest. In a 3-2 decision in a case called Thryv, Inc., the Democratic majority clarified that a “make whole” award must compensate affected employees for “all direct or foreseeable pecuniary harms” resulting from the employer’s unlawful conduct. The decision defines “direct harms” as “those in which an employee’s loss was the direct result of the [employer’s] illegal conduct” and “foreseeable harms” as “those which the [employer] knew or should have known would be likely to result from its violation of the Act, regardless of its intentions.” Examples of foreseeable pecuniary harms could include expenses for transportation, room, and Board; legal expenses and fees; medical expenses incurred, including any increases in premiums, copays, coinsurance, deductibles, other out-of-pocket expenses, and any unpaid medical bills; search-for-work and interim employment expenses; interest and late fees on credit cards, etc.  The dissenting members’ argument that “foreseeable harms” may permit employees to recover a windfall was not persuasive to the majority. 

 In another 3-2 decision, the Board reversed recent precedent and reverted back to the Obama Board “micro-unit” test. In American Steel Construction, the Democratic majority re-shifted the burden back to employers and held that a union petitioned-for unit will be presumptively appropriate unless the employer proves that excluded employees have an “overwhelming” community of interest. Just a few years ago, the Trump Board held that unions had a burden to show “sufficiently distinct” community of interests in order to exclude employees from an otherwise “wall to wall” unit. With yesterday’s decision, unions will more easily be able to define proposed bargaining units and exclude employees who do not share their coworkers’ pro-union sympathies. This means that petitioned-for bargaining units, including groups of as little as two employees, will have an opportunity to vote in a union election, regardless of whether their coworkers share a community of interest.

It has been clear for some time that the Board and General Counsel are doing their part to encourage, cultivate, and increase union density in the privatized workforce. 

Caitlyn Stollings also contributed to this article.