In the final month of 2022, the National Labor Relations Board (Board) issued several employee-friendly decisions. The decisions largely followed political party lines and looked to reinstate or strengthen pre-Trump-era Board rulings. This column addresses several recent Board rulings that have a significant impact for all U.S. employers, including those without a unionized workforce.
On Dec. 13, 2022, the Board ruled 3-2 to significantly expand the remedies available to employees as a result of an unfair labor practice (ULP) or other labor violation under the National Labor Relations Act (NLRA). Historically, the Board limited its “make-whole” remedies to restoring the actual lost wages caused by a ULP, such as back pay and/or payment of union dues and union fines. In Thyv, 372 NLRB No. 22 (2022), after finding the respondent violated the NLRA, the Board expanded the definition of “make-whole” to include all direct or foreseeable pecuniary harms suffered as a result of a ULP—in addition to lost wages.