On August 12, 2021, the new General Counsel of the National Labor Relations Board (NLRB or Board), Jennifer Abruzzo, announced her intention to target certain legal decisions issued in the last four years that she described as “doctrinal shifts” away from settled law, and a set of older decisions that she would like to “carefully examine.” The memo, GC 21-04, identified nearly 40 decisions by the majority Trump-appointed NLRB that she described as shifting the balance of workplace power into the hands of employers, and which she views as ripe for “reexamination.”
Among the recent cases and subjects the memo identified for closer examination by the Division of Advice are:
- Boeing Co., 365 NLRB No. 154 (2017), in which the Board imposed a new framework for evaluating workplace rules and policies such as confidentiality, non-disparagement, social media, communication with the media, and civility rules.
- Valley Hospital Medical Center, 368 NLRB No. 139 (2019), in which the Board found it lawful for employers to cease dues deductions upon contract expiration.
- MV Transportation, 368 NLRB No. 66 (2019), in which the Board did away with the “clear and unmistakable waiver” standard and replaced it with the “contract coverage standard” under which unilateral action is permitted if it falls within the compass or scope of certain contractual language.
- Baylor University Medical Center, 369 NLRB No. 43 (2020), in which the Board permitted severance agreements requiring terminated workers to refrain from disparaging or suing the employer.
- Apogee Retail LLC, d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), in which the Board held that employers may require confidentiality during the duration of a workplace investigation.
- Alstate Maintenance LLC, 367 NLRB No. 68 (2019), in which the Board narrowed the scope of protected concerted activity.
- SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), in which the Board adopted “entrepreneurial opportunity” as a central pillar of independent contractor status.
- Bethany College, 369 NLRB No. 98 (2020), in which the Board ceded jurisdiction over many religious educational institutions.
- UPMC, 365 NLRB No. 153 (2017), which allowed the Board to approve a settlement agreement even over the objection of the General Counsel or charging party.
Abruzzo’s agenda is not limited to Trump-era decisions. She also has her sights set on certain older pro-business decisions:
- Whether non-union employees should have the right to representation in investigatory meetings. IBM Corp., 341 NLRB 1288 (2004).
- Whether employers may tell employees that their access to management will be limited if they opt for union representation. Tri Cast, 274 NLRB 377 (1985).
- Whether independent contractor misclassification is, in and of itself, a violation of the Act. See Velox Express, Inc., 368 NLRB No. 61 (2017).
- Whether employers should be permitted to withdraw recognition after the third year of a contract of longer duration. Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007).
- Whether “salts” (planted union organizers) in the construction industry are entitled to a make-whole remedy. Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).
The General Counsel is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases. Abruzzo previously served as NLRB Acting General Counsel and Deputy General Counsel under President Obama. Most recently, she served as Special Counsel for Strategic Initiatives for Communications Workers of America (CWA).
The memo comes as no surprise given the changing political winds at the NLRB and the General Counsel’s background. Employers should soon expect a more pro-union, pro-employee stance by regional directors around the country. With the coming Democratic majority on the five-member Board, employer conduct that is now lawful may soon be unlawful. Employers should act carefully in areas identified by the memo as the General Counsel’s office will be looking for cases which it can use as vehicles to have the Board overrule the decisions targeted for review.