Related Practices and Jurisdictions
Less than a month after being sworn in as the NLRB’s new General Counsel, Jennifer Abruzzo defined a bold new direction for the board’s enforcement priorities in a memorandum dated August 12, 2021. The Memorandum, Mandatory Submissions to Advice GC Memorandum 21-04 (August 12, 2021) sets out issues that NLRB regions must submit to the General Counsel’s office for advice before making any decision. The Abruzzo memo makes it clear that it intends to move heavily away from the priorities of its predecessor Peter Robb, specifically targeting areas of review where the Trump Board has overridden previous legal precedents.
The GC identifies three broad categories of issues to be brought up for deliberation: (1) Issues where the Board has overridden legal precedents in recent years; (2) new initiatives that the General Counsel wishes to carefully consider, and; (3) Matters traditionally presented for deliberation.
The topic lists are meaningful and clearly signal to employers that the executive board will be embarking on a new course from the Trump Board.
Topics overturned by the Trump Board
The General Counsel practically promised to change these issues, criticizing the Trump board for “overriding many legal precedents that have struck a fair balance between workers’ rights and the duties of unions and employers.” The memo identified the following topics for re-evaluation:
Employer manual regulations: in particular the new, milder test for the legality of an employer manual and the guidelines of The Boeing Co., 365 NLRB No. 154 (2017).
Confidentiality Provisions: a series of decisions that have found confidentiality provisions in settlement agreements, workplace investigations and arbitration agreements to be lawful.
Protected Concerted Activity: a variety of decisions that restricted the restrictions on protected concerted activity (i.e., activities protected by the National Labor Relations Act), with particular emphasis on a re-evaluation of decisions restricting the use of email believed that exclusive communication in the workplace was legitimate.
Unlawful union animus test: in particular Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019) and other cases where the animus requirement to prove unlawful union discrimination is tightened.
Remedies available: decisions that have reduced the likelihood that an employer will have to offer reinstatement and have lowered the standard for regions to accept settlement agreements;
Union Access: Cases where certain workers and union representatives have been restricted from employer’s property;
Union dues: cases where employers unilaterally stop paying union dues after a collective agreement has expired and imposing greater duties on unions in terms of collecting dues;
Employee Status: Cases with a 2019 decision that makes it more likely that an employee with entrepreneurial opportunities would be considered an independent contractor;
Religious Institutions: Bethany College, 369 NLRB No. 98 (2020), which formulated a new standard for assessing the competence of the committee for a religious educational institution;
Employer’s Duty to Recognize and Negotiate with a Union: The GC identifies several key doctrines developed over the past four years regarding a union’s waiver of the right to negotiate, giving employers the right to negotiate guidelines without negotiating adopt a union and make decisions that allow employers to make changes after a collective agreement expires;
Procrastination: Cases where discharge and disciplinary cases are postponed to arbitration, and the more permissive standard reintroduced by the Trump Board.
Other new initiatives
The memo identifies initiatives to review seven other subject areas:
Employee Status: Cases where employees are incorrectly classified as independent contractors and people with disabilities and applicants are covered by the law;
Weingarten: Inclusion of the applicability of a right to information in the pre-disciplinary interview context and whether the right of representation also applies in non-unionized situations;
Responsibility of the NLRB: Assessment of the lines of responsibility between the NLRB and the National Mediation Committee (jurisdiction for rail and aviation industry);
Employer’s Duty to Recognize and Negotiate with a Union: In addition to identifying issues related to surface bargaining and refusing to provide information related to a relocation, the GC specifically noted that the board of directors required the dissolution of Shaw’s Supermarkets, Inc ., 350 NLRB 585, will consider (2007), which allows a medium-term withdrawal of recognition after the third year of the contract;
Workers’ right to strike and / or to strike: cases where strikers are replaced, the general definition of an intermittent strike and a strike with an unlawful secondary purpose;
Remedies and Compliance: Issues related to make-whole remedies and a discriminated person’s duty to conduct an appropriate search for temporary employment;
Impairment of workers ‘rights: Cases of statements implying workers’ access to management will be restricted when a union is elected, implying the employer’s threat to shut down a plant where the threat has not been disseminated and the promulgation of a mandatory one Arbitration Agreement in Response to Employee Protected Activity.
The memo concludes with a recitation of other case-processing matters that have traditionally been presented for deliberation.
More to come and take away
The ten-page memo is a signal that the board will be on a new course for at least the next four years. This combined with the recent confirmation of two new board members (one is already seated and the other will be seated later this month) makes it clear that the ideology and direction of the NLRB is rapidly changing. The GC memo should send a clear signal to everyone that significant changes in labor law precedent are on the horizon.
© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 225
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