As we have previously reported, the National Labor Relations Board (“NLRB” or the “Board”) was likely to undergo substantial policy changes under President Biden. This process began when President Biden took the unprecedented step of firing former General Counsel Robb before his four-year term had expired and continued as Peter Sung Ohr, the Acting General Counsel who was appointed to replace Robb, rescinded many of the more notable guidance memoranda Robb issued during his term.
Now, shortly after being confirmed by the Senate, the new General Counsel of the NLRB, Jennifer Abruzzo, has charted a course for the sea change that is expected to occur at the Board. The General Counsel is responsible for the investigation and prosecution of unfair labor practice cases and supervising the regional NLRB offices. Like several of her predecessors before her, Abruzzo issued a memo identifying the subject matters that the NLRB Regions must submit to the General Counsel’s Division of Advice before any decision can be made.
The August 12 memo 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 General Counsel 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 General Counsel then outlines eleven doctrinal shifts from the last few years, highlighting more than 40 Trump-era decisions, 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.
With this memo, General Counsel Abruzzo has announced an agenda that is starkly different than her predecessor’s and will undoubtedly result in a doctrinal shift that will have far-reaching implications for unions, employees, and employers alike. While the advice of General Counsel’s Office is not binding upon the five-member Board, it does indicate a significant shift in prosecutorial priorities and guidance under the Biden Administration.
Later this month, President Biden will get his first chance to modify the Board’s composition when Member William J. Emmanuel’s term expires. Employers should expect that many of the business-friendly decisions the Board made under the Trump Administration are likely to be overturned and the NLRB to take more decidedly union-friendly actions.
We will continue to monitor developments in this area and provide updates when relevant.
*Myles Moran is a law clerk in the firm’s New York office.