NLRB GC Identifies Aggressive, Pro-Union Priorities and Desired Changes to Existing Law
On March 20, 2023, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued GC Memo 23-04, providing an update concerning her prosecutorial priorities. The memo follows up on GC Memo 21-04 – which was the GC’s first memo (we wrote about it here)– setting forth issues to be submitted to the NLRB’s Division of Advice concerning Board decisions that the GC believed should be overturned.
The GC first noted that many of the issues addressed by GC Memo 21-04 have already been addressed by the Board or are currently pending before the Board. But GC Memo 23-04 identifies 15 issues that remain from GC 21-04 that must be submitted to the Division of Advice.
Issues Relevant to Both Non-Union and Unionized Employers. Regardless of an employer’s union or non-union status, Section 7 of the National Labor Relations Act protects employees’ rights to engage in concerted activity for their mutual aid or protection (i.e. “protected concerted activity” or PCA), while Section 8 makes it unlawful for an employer to interfere with those rights. Many of the issues identified by GC Abruzzo impact all employers:
- Expansion of PCA: The Board has long held that discussion of issues that are “vital elements of employment,” such as wages, are “inherently concerted” even if group action has not yet been contemplated. The GC seeks to expand this doctrine to issues like health and safety, sexual harassment, and diversity, equity, and inclusion (DEI) subjects. (Our Top Tip this month involves a Board Advice Memo that finds workplace discussions of racism to be inherent PCA).
- Offers of Back Pay: Employers may, in some cases, offer a terminated employee more compensation than what would be owed in back pay. The purpose of such an offer is to obtain a waiver of any right to reinstatement that the employee could seek through an administrative charge or lawsuit. The GC is seeking a case in which to argue that such offers are unlawful.
- Arbitration Agreements: In 2019, the Board held that an employer does not violate the National Labor Relations Act (NLRA) by promulgating a mandatory arbitration agreement in response to employees engaging in collective action (e.g., a class or collective action lawsuit). The GC is seeking to overturn that 2019 decision and make such agreements unlawful.
- Electronic Monitoring and Algorithmic Management: The GC reiterated that issues concerning electronic surveillance and AI-related management of employees – which was the subject of GC Memo 23-02, as discussed in our November 2022 E-Update – should be submitted to the Division of Advice.
- Jurisdictional Issues: Currently, individuals with disabilities working in a rehabilitative setting are not “employees” within the meaning of the NLRA. The GC wishes to overturn the 2004 decision in which that holding was established. In addition, the GC directs Regional Offices to submit cases where the National Mediation Board – the agency that oversees labor relations in the airline and railway industries pursuant to the Railway Labor Act – has asserted jurisdiction over an employer in an advisory opinion.
- Intermittent Strikes: Non-union employees have the right to strike. But “intermittent strikes” – where employees repeatedly stop working, typically for short durations – are not protected by the NLRA. The GC seeks to overturn a Trump Board decision broadly defining what activity constitutes an intermittent strike.
Issues for Unionized Employers to Watch. Additional issues raised by GC Abruzzo are specific to unionized employers:
- Withdrawal of Recognition: The GC seeks to overturn the Board’s 2019 decision in Johnson Controls establishing the process for an employer to anticipatorily withdraw recognition from a union. The GC seeks to return to the “last in time” rule that spawns more, not less, confusion and litigation among parties. In addition, the GC will seek to overturn a 2007 case in which the Board held that an employer may withdraw recognition from a union during the term of a collective-bargaining agreement provided that the withdrawal occurs after the third year of the contract (i.e. the “contract bar”). Such a decision could effectively extend the current three-year period of the Board’s “contract bar.”
- Expanding the Scope of Information to be Provided to Unions: The GC appears ready to assert that a unionized employer must provide a union with the questions to be asked to an employee during a pre-disciplinary interview. In addition, the GC seeks cases involving an employer’s refusal to provide information related to plant relocations.
- Issues Related to Successor Employers: Generally, successor employers may set initial terms and conditions of employment even if they differ from those established by its unionized predecessor. The GC seeks a case to argue that an employer found to have discriminated in hiring a certain number of its predecessor’s workforce to altogether avoid a bargaining obligation will forfeit its right to set initial terms and conditions of employment.
- Easing Union Obligations Related to Union Dues: In 2019, the Board held that unions must provide non-member objectors with verification that the financial information provided to them has been independently audited and lobbying costs are not to be charged to such objectors. The GC will seek the reversal of that decision and ask the Board to eliminate the auditing and verification requirements.
- Bargaining Obligations: The GC is seeking cases in which to argue that the post-CBA status quo requires increases to employee benefits. On the remedial side, the GC intends to overturn a 33-year-old case and seek make-whole compensatory remedies where it is found that an employer has unlawfully failed or refused to bargain.
Given how quickly the GC has moved on many of her priorities discussed in her first memo, employers should expect the GC to continue issuing complaints and litigating the above issues to and through the Board. As always, we will keep you updated concerning important developments in these areas.