NLRB’s Pro-Labor General Counsel Issues Memo Compelling Cases for Centralized Consideration

Topics: Union-Management Relations

National Labor Relations Board General Counsel Jennifer A. Abruzzo’s appointment and subsequent July confirmation marked a shift to a pro-labor perspective.  On August 12, 2021, Abruzzo issued her first GC Memorandum as General Counsel  – GC 21-04.  This memo did not disappoint the labor community.

The memo, “Mandatory Submissions to Advice,” directs all Regional Directors, Officers-in-Charge, and Resident Officers to submit various cases to the Regional Advice Branch for “centralized consideration.”  The express purpose of this memorandum and dictate is to ensure that the rules and interpretations of the Board begin to shift from its pro-business stance under the Trump administration to a much more labor and union-friendly viewpoint.  

In the memorandum, Abruzzo laments the previous Board’s adjustments to the law, claiming those adjustments overturned previous [Obama] Board law that “struck an appropriate balance between the rights of workers and the obligations of unions and employers.”  Abruzzo’s mission is to restore the Obama Board precedent as the law of the land.  As a result of the memo, Regions and Regional Directors must now seek clearance from Advice before taking controversial positions or overturning Board precedent. 

Abruzzo identifies three areas required for Advice submission:

1.  Cases and matters involving areas where the Board overruled precedent in the last several years.  Issues falling under this area include the following, as well as many other issues:

• The Boeing framework that many on the union side believe took a narrow view of section 7 rights and expanded employer’s ability to draft broad employee handbooks and other policies, on areas including, but not necessarily limited to confidentiality, social media use, non-disparagement, civility rules and surveillance issues.
   
• The Rio All Suites Hotel and Casino decision, which overruled the Obama Board’s Purple Communications decision from 2014 which governs the employee’s rights to use an employer’s email system for workplace communications related to concerted activity and union organizing.
   
• The 2019 Trump Board decision in Valley Hospital Medical Center, which found that the employer can lawfully cease to honor union dues checkoff clauses unilaterally upon CBA expiration, overruling Obama NLRB precedent that declared that doing so was a violation of the Act (Lincoln Lutheran of Racine).
   
• Whether a worker is an employee or independent contractor, as the Trump Board overruled prior Board precedent in Supershuttle DFW, Inc. by holding that whether a worker has entrepreneurial opportunity is a key factor for this test.

2.     Areas Abruzzo would like to examine, even if prior precedent was not overturned by the Trump Board. These areas include cases involving, but not limited to:

• Employee status and the right to bargain (including cases involving independent contractor v. employee issues, cases related to whether disabled workers working in a rehabilitative setting are employees);
   
• Cases involving the applicability of Weingarten rights and/or bargain among others;
   
• Cases involving jurisdictional disputes between the NLRA and the RLA;
   
• Cases involving bargaining issues related to surface bargaining, failure to furnish information, withdrawal of recognition under the 2007 NLRB decision in Shaw’s Supermarkets;
   
• Issues and cases where the employer refuses to recognize the union despite a clear showing of support through the presentation of authorization cards and cannot justify its refusal to recognize based on card check; and
   
• Cases involving interference during campaigning by making threats regarding access to management and/or threats of plant closure if the union is elected.

3.    Other matters traditionally submitted to Advice.  These areas include, but are not limited to cases:

• Concerning the validity of partial lockouts;
   
• Where the Board invites the parties to file briefs addressing novel or complex issues, or ones of first impression;
   
• Where state law and federal board law intersect; and
   
• Involving section 10(j) injunctions.

In sum, this memorandum will give Abruzzo and her office broad ability to oversee, implement and efficiently undo many of the pro-employer decisions issued by the Board in the last several years.  Of course, we will continue to report on these developments as they occur.