New NLRB General Counsel Signals Major Changes Ahead
On August 12, 2021, the recently confirmed General Counsel (GC) of the National Labor Relations Board, 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. Typically, such submissions are the first step on the path to overturning existing case law that a sitting GC seeks to change.
As a reminder, the National Labor Relations Act (NLRA) applies to almost all private-sector employers regardless of whether they are unionized. In particular, 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. Accordingly, both union and non-union employers should pay close attention to this memo, which signals the intentions of the GC and foreshadows where the law may be headed.
GC Memo 21-04 is broken down into three sections. The first section addresses recent cases that brought about changes in the law. GC Abruzzo noted that the Board in recent years has “overrul[ed] many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.” (Board Republicans would assert those decisions were responsive to “doctrinal shifts” imparted by the Obama Board.)
- Work Rules: It should come as little surprise that GC Abruzzo led with cases involving the applicability of The Boeing Co., the case that altered the standard for analyzing facially neutral work rules. The GC specifically called out Boeing’s applicability to “confidentiality rules, non-disparagement rules, social medial rules, media communication rules, civility rules, respectful and professional manner rules, offensive language rules, and no-camera rules.”
- Protected Concerted Activity: As her predecessor Peter Sung Ohr had done in GC Memo 21-03, GC Abruzzo denounced what she believed to be the Trump Board’s narrowing of what constitutes concerted activity. Additionally, the GC seeks to examine cases involving the “inherently concerted” doctrine. On the latter issue, it appears that the GC will seek to expand the doctrine to include “subjects other than wages, but that regularly arise in the workplace, such as issues involving employees’ health and safety.”
- Confidentiality in Workplace Investigations: In 2019, the Board held in Apogee Retail Group LLC d/b/a Unique Thrift Store that employers may maintain and enforce rules requiring confidentiality for the duration of a workplace investigation. That holding overruled an Obama-era decision in Banner Estrella Medical Center, which required that an employer show a “legitimate and substantial business justification that outweighs employees’ Section 7 rights.” Banner Estrella also held that an employer could not maintain a rule requiring confidentiality in every case but, rather, must evaluate each individual investigation to determine whether special circumstances warranted employee confidentiality and outweighed employees’ Section 7 rights. Many employers believed meeting the Banner Estrella standard was a fool’s errand. And we may soon see a return to something resembling the Banner Estrella standard, making it extremely difficult for employers to require employee confidentiality during a workplace investigation.
- Separation Agreements: The GC would like to re-examine Baylor University Medical Center, which found lawful separation agreements containing confidentiality and non-disparagement clauses, as well as agreements prohibiting the separating employee from participating in claims brought by third parties against the employer.
- Union Access to Employer Property: Several Trump-era decisions expanded employer property rights and permitted employers to bar non-employees (e.g., union organizers) from their property. The GC will seek appropriate cases to pass to the Board to reassess those decisions.
- Employees’ Use of Employer E-mail and Other Electronic Communication Platforms: GC Abruzzo will reassess cases involving the applicability of Rio All-Suites Hotel and Casino, which reversed the maligned Purple Communications In Rio All-Suites Hotel and Casino, the Board held that employees do not have a Section 7 right to use employer e-mail or other IT resources to engage in non-work-related communications. Thus, employers may lawfully restrict employee use of such resources provided it does not discriminate against union or other protected communications, or unless the system is the only reasonable means for employees to communicate with each other. Thus, the GC seemingly seeks a case calling for a return to the Purple Communications standard, which would provide employees with a presumptive right to use e-mail systems on non-working time for communications protected by Section 7 of the NLRA, including engaging in union organizing efforts on employer e-mail systems during non-working time. In addition, the GC encouraged Regions to submit cases involving employees’ use of other electronic communication platforms, including Slack, Discord, and Groupme, which suggests a possible expansion of the Purple Communications standard beyond e-mail.
- Employee/Independent Contractor Status: The GC seeks cases involving the applicability of SuperShuttle DFW, Inc., which set a new standard for determining whether a party has met its burden of establishing independent contractor status, and emphasizes the significance of “entrepreneurial opportunity.” Independent contractors do not have Section 7 rights under the NLRA. Thus, just as many federal agencies will likely do in the coming years, expect the GC to push a case to the Board with the hope that the Board will re-establish a standard that makes it more difficult for a party to establish that a worker is an independent contractor rather than an employee.
The second section “identifies other initiatives and areas that the [GC] wants to carefully examine,” per the NLRB’s press release. On these issues, GC Abruzzo posits that she will seek to “determine whether current law ensures that employees have the right to exercise their fundamental Section 7 rights both fully and freely.” Those issues include:
- Extending Weingarten Rights to Non-Union Employees: Currently, Weingarten rights provides only unionized employees a right to representation (by their union) during an investigatory interview that may result in discipline to the employee. Thus, if the Board extends these rights to non-union employees, as has long been discussed but never implemented, those employees may have the right to representation during an investigatory meeting.
- Employer Statements During Union Campaigns: GC Abruzzo specifically required field offices to submit cases regarding the applicability of a decision that permits employers to tell employees that their access to management will be limited if the employees opt for union representation. Employers can expect other statements often utilized during campaigns to come under close scrutiny under this GC.
The third and final section addresses issues that have long been required to be submitted to the Regional Advice Branch, including cases addressing an issue of first impression or implicating the need to harmonize the NLRA with another local, state or federal statute.
These memos are something of a tradition among newly minted General Counsels. And in almost every instance, the areas of law addressed in the GC’s first memo see significant changes during the term of that GC. Both unionized and non-union employers can expect unsettling changes to many of these areas of the law in the coming years. As always, we will keep you updated about these changes and how your company can adapt to those changes.