Last week, the recently sworn-in NLRB General Counsel, Jennifer Abruzzo, issued a memorandum setting forth the Board’s new enforcement priorities, which include a review (and potential overruling) of decisions issued by the Board during the Trump Administration that had overturned legal precedent. To achieve her priorities, the General Counsel is requiring that NLRB Regions submit cases involving certain subject matters to the Office of the General Counsel for Advice prior to issuing a decision. The list of topics contained in the memo is a not-so-subtle sign that the General Counsel is seeking to chart a new, more employee-friendly course than the Trump-era Board.
The General Counsel’s memo is broken down into three categories of cases that must be referred to Advice. The first category is “cases and subject matter areas where, in the last several years, the Board overruled legal precedent.” The second category includes “other initiatives and areas that, while not necessarily the subject of a more recent Board decision,” are nevertheless ones the General Counsel “would like to carefully examine.” The final category identifies “other casehandling matters traditionally submitted to Advice.”
Cases and Subject Matter Areas Where the Board Recently Overruled Legal Precedent
In the memo, the General Counsel opined that “over the past several years, the Board has . . . overrul[ed] many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.” The memo includes the following subject matter areas for review:
- Employer handbook rules. Specifically, cases involving the applicability of The Boeing Co., 365 NLRB No. 154 (2017) to confidentiality rules, non-disparagement rules, social media rules, media communication rules, civility rules, and no camera rules.
- Confidentiality provisions/Separation agreements and instructions. Including cases involving the applicability of Baylor University Medical Center, 369 NLRB No. 43 (2020), which found that separation agreements that contain confidentiality and non-disparagement clauses, as well as those prohibiting the departing employee from participating in claims brought by any third party against the employer in return for severance monies, lawful.
- Protected concerted activity. Including cases involving the applicability of Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), which, according to the General Counsel, “narrowly construed what rises to the level of concerted activity and what constitutes mutual aid or protection within the meaning of Section 8(a)(1).”
- Union access. Including cases involving the applicability of Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019) and UPMC, 368 NLRB No. 2 (2019), which affirmed employers’ rights as property owners to limit access to their premises.
- Union dues. Including cases involving the applicability of Valley Hospital Medical Center, 368 NLRB No. 139 (2019), which found that an employer may lawfully cease checking off and remitting union dues unilaterally following contract expiration.
- Employee status. Including cases involving the applicability of SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), which placed emphasis on the significance of entrepreneurial opportunity when determining whether an individual is an independent contractor.
Other Areas and Initiatives
In addition to areas where the Board had recently overturned precedent, the General Counsel also identified other subject matter areas that she would “like to carefully examine” that must be submitted to Advice.
- Employee status. Including cases involving misclassification of workers as independent contractors and the Act’s coverage to individuals with disabilities.
- Weingarten. Including cases involving United States Postal Service, 371 NLRB No. 7 (2021), where the Board refused to find a pre-disciplinary interview right to information and other cases involving the applicability of Weingarten principles in non-unionized settings.
- Employer duty to recognize and/or bargain. Including cases involving surface bargaining, refusal to furnish information related to a relocation, and cases involving the applicability of Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007), which permits mid-term withdrawals of recognition where they occur after the third year of a contract of longer duration.
- Employees’ Section 7 right to strike and/or picket. Including cases involving intermittent strikes and employers’ permanent replace of economic strikers.
- Remedies and compliance. Including cases involving make-whole remedies and a discriminatee’s obligation to search for interim employment.
- Employer interference with employees’ Section 7 rights. Including cases involving instances where an employer tells an employee that access to management will be limited if employees opt for union representation and where an employer threatens plant closure.
Bottom Line
The General Counsel’s memo, which comes on the heels of two union lawyers being confirmed by the Senate to Board positions, should be a clear signal that significant changes to labor law precedent are fast approaching. We will continue to monitor the situation and report any further developments.