On December 13, 2022, the National Labor Relations Board (NLRB) expanded the remedies that may be awarded in unfair labor practice cases. The board ruled 3-2 that affected employees may recover compensation for “all direct or foreseeable pecuniary harms” resulting from an employer’s unfair labor practice as a matter of course in all cases involving “make whole relief.” The board ordered recovery of pecuniary harm only, but left open the question of compensatory damages for items such as emotional distress, stating that the issue was not presented by the case before it. 

The range of potential pecuniary harm that may be considered is broad. The NLRB gave examples for out-of-pocket medical expenses, credit card debt/interest, legal cost stemming from an improper arrest, job search expenses, costs associated with eviction/repossession of personal property, tax penalties for early withdrawal of retirement savings and “other costs simply in order to make ends meet.” The board further noted that the range of potentially compensable harms was too broad to catalog in the opinion. 

In a separate 3-2 decision, the NLRB ruled in American Steel Construction Inc., 372 NLRB No. 23 (Dec. 14, 2022) that a union’s proposed bargaining unit in which it seeks representation can be expanded to include more employees only if the employer proves that the additional employees share an “overwhelming” community of interest with the employees in the union proposed unit. Prior law had required the union to demonstrate that a larger unit proposed by an employer was inappropriate.

This decision will make union organizing significantly easier – to obtain a representation election, the union must obtain support from at least 30% of the unit employees.