Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
There’s a new sheriff in town at the National Labor Relations Board, and she is charting a new course for the Board. On August 12, the NLRB's new general counsel (GC), Jennifer Abruzzo, issued Memorandum 21-04, instructing NLRB regional directors on her litigation priorities.
The 10-page memo is divided into three sections: (1) cases and subject matter areas where, in the last several years, the Board overruled legal precedent; (2) initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones she would like to examine carefully; and (3) other case-handling matters traditionally submitted to the GC’s office for advice.
Under the first section, GC Abruzzo identified specific areas in which she would like to weigh in, including: employee handbook rules, the validity of confidentiality provisions in separation agreements, what constitutes protected concerted activity, and an employer’s right to remove agents from their premises. Many of the decisions issued and policy shifts undertaken by the prior administration will likely be getting a second look. GC Abruzzo has made clear that she is interested in revisiting key Trump-era Board decisions, including:
- The Boeing Co., 365 NLRB No. 154 (2017), which set a new standard for analyzing employer’s workplace policies and handbooks. GC Abruzzo wants to reconsider application of Boeing to employer rules governing employee confidentiality, non-disparagement, social media, media communication, civility rules, respectful and professional manner rules, offensive language rules and no-camera rules in the workplace. Employers should expect additional scrutiny on their workplace policies and should exercise caution when issuing discipline pursuant to their policies on these topics.
- SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), which changed the legal standard for employment status by creating a new framework which applied the common-law agency test with consideration of the individual’s “entrepreneurial opportunity.” Reversal of this decision could have a major impact on employers that rely on independent contractors as part of their business model, by making contractors employees covered by the NLRA.
- Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), which held that employers can lawfully limit employee’s personal use of company email, including for union purposes. GC Abruzzo has specifically requested the submission of cases dealing with use of internal electronic communication systems, including platforms like Discord, Slack, and Groupme. Employers should anticipate a push to expand employees’ right to use company communications systems for union organizing and other conversations related to working conditions.
- Baylor University Medical Center, 369 NLRB No. 43 (2020), which held that an employer could lawfully include confidentiality and no-disparagement clauses, as well as clauses prohibiting employees from participating in claims brought by any third party against the employer in a separation agreement, in exchange for severance payments. Employers should expect additional scrutiny on private settlement agreements seeking these clauses. Even in non-union settings, employees might be able challenge the validity of negotiated settlement agreements through the Board process.
Reversals of these decisions would impact union and non-union employers alike.
Beyond the predictable intent to overturn many of the decisions issued during the Trump Board, GC Abruzzo also takes aim at longstanding Board policy. A major example of this is GC Abruzzo’s targeting of the Board’s 52-year-old standards for obtaining a representation election. Since NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), an employer presented with an alleged majority of signed union authorization cards does not have to take them at face value and recognize the union. Rather, it may insist on an election to determine the employees’ wishes and need not make any independent inquiry into the validity of the cards. GC Abruzzo seeks to upend the decades-old representation election status quo by returning to the standard that existed prior to Gissel, Joy Silk Mills, 85 NLRB 1263 (1949). Joy Silk required the employer to have a good-faith doubt regarding majority status in order to refuse a demand for recognition and move to a Board election. If, after refusing a demand for recognition, the employer could not establish a good-faith doubt for its denial of the union’s majority status or committed any unfair labor practices that demonstrated the employer’s “rejection of the collective bargaining principal or . . . desire to gain time within which to undermine the union,” the employer faced a bargaining order.
In all, the list of case categories requiring mandatory submission to the NLRB’s Division of Advice are lengthy. The below discussion is not exhaustive but gives employers a clear signal that things have changed.
- Duty to Bargain. Among the largest categories of cases to be referred to Advice are bargaining cases. These cases include an apparent desire to (1) abrogate the “contract coverage” and “sound arguable basis” standards for considering whether an employer’s unilateral action is permitted by a collective-bargaining agreement and return to the “clear and unmistakable waiver” standard; (2) overturn the standard permitting employers to unilaterally modify terms and conditions of employment provided that the modifications were a continuation of a past practice; (3) lower the standards for an “inability to pay” claim during collective bargaining negotiations that would trigger an obligation for a company to provide its financial records to the union; (4) require employers to provide post-contract expiration increases to wages and benefits under the “dynamic status quo” theory; and (5) a return to the requirement that employers have a duty to bargain pre-contract discretionary discipline, in first contract negotiations.
- Elections/Duty to Recognize. Currently, provided employers have evidence that the union has lost majority status, employers may withdraw recognition from the union up to 90 days prior to contract expiration. If the union contests the employer’s withdrawal of recognition, the union may request a representation election within 45 days from the withdrawal of recognition. GC Abruzzo also seeks to eliminate this framework. Presumably, GC Abruzzo seeks to return to the standard that existed prior to the Trump Board where the “last in time” proof of majority status controlled the employer’s ability to ultimately withdraw recognition.
- Right to Strike and/or Picket. GC Abruzzo seeks to limit employer power to withstand strikes and pickets while expanding employee power to engage in activity disruptive to the employer’s business. The Advice cases for referral to the GC include cases (1) where the employer’s hiring of permanent replacements had an alleged unlawful motive; (2) involving intermittent strikes; (3) involving alleged secondary object picketing; and (4) involving employers unilaterally setting the terms and conditions of replacement employees in excess of striking employees.
- Section 7 rights. In an expansion of prior Acting General Counsel Peter Suing Ohr’s Memorandum on protected concerted activity, GC Abruzzo also seeks to alter the landscape of Section 7 rights. Cases to be examined include (1) cases calling into question the definition of “protected concerted activity”; (2) cases related to the definition of “mutual aid or protection”; (3) the definition of “inherently concerted activity”; and (4) the difference between solicitation and mere “union talk.” Other changes GC Abruzzo seeks to establish include preventing employers from explaining during a campaign that employee access to management will be limited if employees are represented by a union; presuming dissemination of employer threat of plant closure; and precluding employers from promulgating mandatory arbitration agreements in response to employee collective action.
As expected, the enforcement priorities of the GC’s office have also changed. Unlike the process under the Trump-era Board, which was gradual and largely relied upon Board action, GC Abruzzo’s approach to enforcement priorities will be immediate. Therefore, at least as to the cases and issues mentioned in the memorandum, employers should expect that reliance on prior Board precedent will not prevent the GC’s office from finding merit and issuing a complaint and issuing requests for 10(j) injunctive relief liberally. Employers should not expect the change in priorities to end with this memo, as the GC Abruzzo herself indicates, the list is just a beginning. GC Abruzzo expects “that this memo will be supplemented at some point in the future to include other important issues, as well as refinements.”
The pendulum swings again—this time potentially farther and faster than anything we have seen previously.