On July 22, 2021, the National Labor Relations Board (“NLRB” or the “Board“) welcomed its new General Counsel, Jennifer Abruzzo. Now, after only a couple of months, Abruzzo has issued her first memo, which serves as a map of the new General Counsel’s plans. Overall, it’s very clear that Abruzzo intends to depart from the priorities of her predecessors who served under the Trump Administration, and to target cases and initiatives from the Trump Board that overruled the precedent from the Obama Board.
Before jumping into the memo, it’s important to note that the NLRB General Counsel is responsible for the investigation and prosecution of unfair labor practice cases and supervising the regional NLRB offices. Additionally, while the advice of General Counsel’s Office is not binding upon the five-member Board, it does carry substantial weight.
The memo itself lists three categories of cases that must be submitted for advice, including: (1) subject matter areas where the Board under President Trump overruled legal precedent; (2) new initiatives that Abruzzo would like to examine; and (3) other case handling matters traditionally submitted to the Division of Advice. These are broad categories and the memo lists dozens of specific subjects. However, the memo also notes that this list is not exhaustive and other policy priorities are likely to surface in the coming months and years.
Doctrinal Shifts From the Trump Board
At the outset, the memorandum criticizes the Board under President Trump for doctrinal shifts that include overruling many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers. The memo then outlines eleven doctrinal shifts that occurred during the Trump Administration that she seeks to reverse or at least modify. These include:
- The applicability of the test articulated in The Boeing Co., 365 NLRB No. 154 (2017) to employer handbook provisions, particularly confidentiality, non-disparagement, social media, and other communications rules;
- Cases finding separation agreements and workplace instructions involving confidentiality and no-disparagement requirements lawful;
- What constitutes protected concerted activity and what constitutes mutual aid or protection within the meaning of Section 8(a)(1) of the National Labor Relations Act;
- The application of Wright Line and the General Counsel’s burden in cases where an employer takes an adverse action against an employee because of their Section 7 activity;
- Cases limiting the availability of reinstatement as a remedy and lowering the standard for Regions to accept settlement agreements;
- Unions’ right to access employer property;
- Cases involving the collection and review of union dues;
- Employee status and the impact of whether the individual has entrepreneurial opportunity;
- NLRB jurisdiction over religious institutions;
- Cases involving an employer’s duty to recognize and/or bargain with a union; and
- Cases involving NLRB deferral arbitration.
Other Initiative Beyond Trump Board Precedent
Beyond the specific Trump-era precedents the General Counsel seeks to challenge, Abruzzo has also identified several other types of cases that she intends to review, including those involving:
- Worker misclassification;
- Employees’ Weingarten rights to union representation at investigatory interviews;
- The distinction between NLRB jurisdiction and the National Mediation Board (which has jurisdiction over the airline and rail industries);
- Employer duty to recognize and/or bargain;
- Employees’ Section 7 right to strike and/or picket;
- Make-whole Remedies and the employee’s duty to seek interim employment; and
- Employer interference with employees’ Section 7 rights by implying certain negative effects if a union is voted in and the implementation of mandatory arbitration agreements in response to protected activity.
The last section of the memo contains a recitation of other typical case handling matters that have traditionally been submitted to the Division of Advice.
This memo signals that substantial changes are taking place at the NLRB as the agency seeks to uphold President Biden’s promise to be a pro-union President. Employers can no longer expect that the precedent established under the Trump Board will stand and can expect for many employee friendly changes to be implemented over the next several years.