New NLRB GC Intends to Seek Case Law Reversals That Will Benefit Unions

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On August 12, 2021, the recently confirmed General Counsel (GC) of the National Labor Relations Board (NLRB) , Jennifer Abruzzo, issued her first official memo. Per an NLRB press release, GC Memo 21-04 “lays out a clear agenda…on some priorities of the Office of the General Counsel.” The memo directs NLRB field offices to submit cases addressing issues identified in the memo to the Regional Advice Branch of the Office of the General Counsel. Often, such submissions are the first step on the path to overturning existing case law that a sitting GC seeks to change.

As a reminder, Section 7 of the NLRA grants employees the right to engage in concerted activities (not just unionization) for their mutual aid or protection, while Section 8 prohibits employers from interfering with the exercise of that right.

Last month, we issued an E-lert on the “priorities” that generally apply to all employers, whether unionized or not. This month, we focus on the issues of interest to employers who are unionized or face organizing activity and how GC Abruzzo may seek to change existing law related to those subjects:

Union Organizing

  • Joy Silk Bargaining Orders: In what could be cause for significant employer alarm depending on her intent, GC Abruzzo will re-examine whether to seek the reincarnation of Joy Silk bargaining orders. Prior to the adoption of the Gissel bargaining order standard, unions could obtain bargaining orders where an employer refused to recognize and bargain with a union that presented evidence that a majority of unit employees signed authorization cards unless the employer could establish a good faith doubt as to the union’s majority status. The GC will focus on cases where an employer has engaged in unfair labor practices or where the employer “is unable to explain its reason for doubting majority status in rejecting the union’s demand.” While concerns that Joy Silk bargaining orders could serve as a stand-in for card check may be overstated (or not), employers should be rightly concerned with what the GC may require of employers when arguing its “good-faith doubt” of a union’s majority status.
  • Union/Contractor Access to Employer Property: GC Abruzzo cited three Trump Board decisions that expanded employer property rights and permitted employers to exclude union organizers and off-duty contractor employees more easily – the latter issue has been remanded to the Board since this GC memo issued. Employers can expect the GC to seek to overturn those decisions and, at minimum, return to the standards that existed prior to the Trump Board’s decisions, which will afford union organizers and off-duty contractors greater access to employer property than currently required.

Bargaining

  • Unilateral Changes During Term of CBA: In the Board’s 2019 MV Transportation decision, the Board adopted the “contract coverage” standard for analyzing employer unilateral changes (i.e., changes to employee terms and conditions without first notifying and bargaining with the employees’ union). Under the MV Transportation standard, employer unilateral action is permitted provided that the change is within the “compass or scope” of existing language in the parties’ CBA. This standard replaced the “clear and unmistakable waiver” standard, which was a more onerous standard for employers that has been consistently rejected by the D.C. Circuit (the court with jurisdiction to hear all appeals of Board decisions). Despite this, it appears that GC Abruzzo is seeking a vehicle to overturn MV Transportation and reinstate the prior standard.
  • Remittance of Union Dues Post-Contract Expiration: In Valley Hospital Medical Center, the Board held that an employer may cease deducting and remitting union dues following the expiration of a CBA. That decision provided employers with additional leverage during bargaining: without employer deduction and remittance of dues, unions would have to seek the dues directly from employees (or not at all), something unions are loath to do if it can be avoided. That decision appears to be in GC Abruzzo’s sights.
  • Requests for Information: Unions may obtain increased access to employer documents and information. GC Abruzzo has signaled her intention to re-examine cases concerning when an employer must turn over its financial records to a union during bargaining, whether an employer must provide the union with documents and information concerning plant relocation decisions, and whether an employer must furnish information concerning customer complaints related to employees.

Withdrawing Recognition. Put simply, the GC seeks to overturn recent decisions making it easier for employers to withdraw recognition from a union that may no longer be supported by a majority of the bargaining unit employees:

  • Anticipatory Withdrawals of Recognition: Currently, if within 90 days from CBA expiration an employer receives evidence that a majority of unit employees no longer wish to be represented, it may notify the union of its intention to withdraw recognition at the expiration of the CBA. To reacquire majority status, the union must file a petition with the NLRB, which will administer an election to determine employees’ wishes concerning continued union representation. GC Abruzzo presumably seeks to return to the previous “last in time” rule, which permits a union to surreptitiously reacquire majority support, thereby setting up the employer to commit unfair labor practices when it withdraws recognition and makes unilateral changes to employee working conditions following the withdrawal of recognition.
  • Withdrawing Recognition During Term of CBA: GC Abruzzo would like to “assess” whether the Board’s 2007 decision in Shaw’s Supermarkets should be overruled. That decision allowed for employers to withdraw recognition from a union at any point after the third year of a contract of a longer duration – three years is also the length of the “contract bar,” which prevents rival and decertification petitions outside of the 30-day “window period” just prior to the contract’s expiration. While it is too early to speculate what position the GC may stake out, whatever that position may be would likely make it more difficult for an employer to withdraw recognition during the term of a lengthy CBA.

Conclusion. It is customary for new GCs to state their policy priorities upon taking office. And it is of no surprise that GC Abruzzo would push for the overturning of decisions that she perceives to be employer-friendly or, more importantly, union-unfriendly. This memo typically foreshadows upcoming changes in the law. If that is the case, employers can expect the GC to push for reversal of precedent that will make it easier for unions to organize, strengthen unions’ bargaining position, and making it more difficult for employers to withdraw recognition from a union even where the union is no longer supported by a majority of employees. As always, we will keep you updated on these important issues.