03/18/2024: Employer Accepts New Make-Whole Remedy. More Illegal Rules.
Thryv thrives.
Region 6-Pittsburgh Secures Settlement Requiring Paragon Systems, Inc. Compensate Employees For Lost Bargaining Opportunity (Regional News). In late 2022, the Board issued its Thryv decision, which expanded its traditional make-whole remedy for unfair labor practices to include “all direct or foreseeable pecuniary harms that these employees suffer as a result of the respondent’s unfair labor practice.” That decision is facing legal challenges, including most recently from Starbucks in the Third Circuit. The NLRB is highlighting this Paragon Systems settlement agreement because the employer agreed to abide by the remedial regime announced in Thryv and pay $286,000 in damages that its employees suffered as a result of the company’s refusal to bargain in good faith.
Paragon Systems, Inc., 03-RC-336208(Regional Election Decision). The incumbent union, LEOS/PBA had a collective bargaining agreement (CBA) with the employer that covered a unit of guards. The CBA ran from March 15, 2021 to June 15, 2024. A separate union, SPFPA, submitted a petition seeking to represent this same unit of workers. Under the contract bar doctrine, whenever a unit of workers is covered by a CBA, a separate union cannot seek to represent them. One exception to this is if the contract lasts more than 3 years in which case the other union can submit a petition within a 30-day window that starts 90 days before the third year of the CBA commences and ends 60 days before the third year of the CBA commences. LEOS/PBA failed to file its petition in that 30-day window apparently because of a typographical error in the CBA. The region dismissed its petition.
ExxonMobil Global Services Company, JD-15-24, 16-CA-269606 (ALJ Decision). The employer maintained a confidentiality rule that forbid employees from disclosing things such as “nonpublic information” about the employer’s “plans” and “personnel.” It also maintained an internet usage policy that forbid the transferring of “company information” to personal internet accounts. The ALJ determined that these rules are overbroad under the Stericycle standard for evaluating coercive rules because an employee would read them as forbidding them from engaging in protected activity such as publicly discussing employee benefit plans and terms and conditions of employment on social media.
Tri Family, LLC dba Hand & Stone Massage, 12-RC-320201 (Unpublished Board Decision). The union filed a petition seeking to represent a unit of massage therapists. The employer submitted eight objections arguing that supervisors had unduly affected the results of the election. The regional director dismissed three of the objections but scheduled a hearing for the other five. The union appealed the decision to schedule a hearing for the other five, arguing that they were vague, and rely upon faulty evidence, among other things. The Board rejected this appeal.
In the discourse about how good the NLRB has been over the last few years, the expansion of monetary remedies in the Thryv decision does not get nearly as much play as it ought to. One of the main problems with the National Labor Relations Act is that the penalties are too weak to deter employers from breaking the law and also do not really compensate workers for all the harms they suffer when employers violate their rights. By allowing make-whole remedies to include “all direct or foreseeable pecuniary harms that these employees suffer as a result of the respondent’s unfair labor practice,” Thryv helps fix this. It is unclear whether the appeals courts will strike it down, but if they don’t, it may end up being the most consequential case to come out of the Biden Board.