Publications

It’s been a busy month for the National Labor Relations Board, with a flurry of activity having significant ramifications for unionized and non-union companies alike. In this series of split decisions, the Biden NLRB continues to chip away at precedent as it expands protections for workers and unions. As we enter the new year, employers should take note of these recent developments and expect more to come in 2023.

Thryv, Inc.: Redefining Make-Whole Relief

Last year, Jennifer Abruzzo, General Counsel of the NLRB, released a memorandum urging the Board to impose “the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.” In a recent 3-2 decision, the Board acceded to the General Counsel’s wishes.

For decades, employers coming before the Board could be sure that liability for an unfair labor practice would be limited to traditional remedies like back pay and reinstatement. But the NLRB’s decision in Thryv, Inc. and International Brotherhood of Electrical Workers, Local 1269, 372 NLRB No. 22 (Dec. 13, 2022) has vitiated that sense of certainty. Though it refused to embrace the term “consequential damages,” the Board clarified that, going forward, it will consider awarding a far broader range of remedies to aggrieved parties. Indeed, the Board’s majority concluded that employers are liable for “all direct and foreseeable” damages flowing from violations of the National Labor Relations Act. While the Board declined to provide an exhaustive list of damages that might fall within this category, the decision signaled that out-of-pocket medical expenses, credit card debt, and whatever “other costs” incurred “simply to make ends meet” are all fair game.

Fortunately, the extent of potential damages is not limitless. Employers will have the opportunity to present evidence that the harm in question would have occurred even absent the unfair labor practice, or that the harm was not foreseeable. Moreover, harms that are unquantifiable, speculative, or nonspecific will not be remediated by the Board.

New York Presbyterian Hudson Valley Hospital: Termination for Mid-Surgery Walkout Violates NLRA

On February 25, 2020, RN Tyo—a tenured scrub nurse with New York Presbyterian Hospital and a member of the New York State Nurses Association (the “Union”) negotiating team—was assigned to supervise RN Lazaro, a more junior nurse, in a complex spinal surgery. Approximately two hours into the surgery, RN Tyo received word that a group of union representatives had arrived at the hospital and were preparing to approach the hospital’s Chief Nursing Officer regarding negotiations. Tyo walked out of the surgery to join the union team, leaving RN Lazaro unsupervised. Tyo and her colleagues then sought out the Chief Nursing Officer, but she refused to speak with them outside her office and without an appointment. Feeling ambushed, the Chief Nursing Officer admonished Tyo and then contacted security and human resources to report the incident. Meanwhile, Tyo returned to the operating room. Two weeks later, the hospital terminated Tyo’s employment for “patient abandonment.”

Seems straightforward enough, right? Not so, according to a split NLRB. The majority in New York Presbyterian Hudson Valley Hospital and New York State Nurses Association, 372 NLRB No. 15 (Dec. 5, 2022) concluded that the firing ran afoul of the National Labor Relations Act. Though reasonable on its face, the Board somehow found that the termination was motivated not by concern for patient safety, but by the hospital’s animus toward Tyo for engaging in protected union activity. In support of this determination, the Board noted that not only did the hospital assign RN Lazaro to work unsupervised on the very same surgery just days later, but it also failed to discipline another supervising nurse for leaving Lazaro alone in the operating room for significantly longer than Tyo had. Though, as the dissent pointed out, that supervising nurse was just outside the room, immediately available in case of emergency, whereas Tyo disappeared without so much as letting Lazaro know where she could be found. Nonetheless, these purported disparities were enough to convince the Board that the hospital’s proffered reason for terminating Tyo, namely, patient abandonment, was a pretext deployed to punish her for engaging in protected union activity. The minority vigorously dissented, with former NLRB Chairman John Ring going so far as to describe the majority’s decision as a shock to the conscience.

While few employers will find themselves in this precise predicament, the decision is a stark reminder of the Board’s willingness to scrutinize business and personnel decisions, even firings in response to egregious misconduct, for any sign of union animus.

Bexar County Performing Arts Center II: Limits on Property Owners’ Rights to Oust Protesting Employees of Third-Party Contractors

In yet another split decision, the Board revisited the balance between the rights of third-party property owners and those of labor protestors. Unsurprisingly, this Board sided with the protestors, limiting property owners’ rights to oust protesting off-duty contractors from their premises.

The Board last addressed this question in 2019, when it concluded that property owners were free to eject off-duty employees of the property owners’ contractors so long as the workers did not “regularly and exclusively” labor there. The Board is now walking back that standard, announcing in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, 372 NLRB No. 28 (Dec. 16, 2022) (Bexar County II), a return to its pre-2019 pro-worker stance.

A group of off-duty performers for the San Antonio Symphony (the “Symphony”) arrived at the Tobin Center for the Performing Arts (the “Center”), the Symphony’s landlord, leaflets in hand, to protest the Symphony’s use of recorded rather than live music in its production of Sleeping Beauty. The Center’s staff had them removed from the premises, forcing them to relocate across the street where they could reach fewer patrons. Though the off-duty performers were not employees of the Center and did not exclusively perform there, the Board’s majority nonetheless concluded that their removal violated the performers’ Section 7 rights, a clear departure from the Board’s 2019 precedent. Going forward, the Board announced, property owners cannot remove protesting employees of third-party contractors unless their activities significantly interfere with the property’s use, or there is another legitimate business reason to ban the protesters. This marks a return to the Board’s pre-2019 stance, enunciated in New York New York Hotel & Casino, 356 NLRB 907 (2011) and approved by the D.C. Circuit, 676 F.3d 193 (D.C. Cir. 2012).

In the wake of Bexar County II, property owners would be wise to think twice before interfering with labor protests, even those spearheaded by workers they do not directly employ.