NLRB General Counsel Continues Push to Limit Employer Rights

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On August 12, 2021, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued GC Memo 21-04, Mandatory Submissions to Advice, which provided an extensive list of issues to be placed at the forefront of consideration by the NLRB. Since then, the NLRB Division of Advice has issued guidance on 46 NLRB decisions identified in GC Memo 21-04 and subsequent memorandums. For example, the current Democrat-led NLRB overturned well-established precedent and held that employer restrictions on employees’ display of union insignia in the workplace are presumptively unlawful absent special circumstances. This holding in Tesla Inc., 371 NLRB No. 131 (Aug. 29, 2022) has essentially outlawed uniforms and dress code policies for employers.

GC Memo 23-4, which was issued on March 20, 2023, indicates that General Counsel Abruzzo will continue her aggressive pursuit of change in labor law. Specifically, GC Memo 23-4 addresses 15 contentious issues remaining from the August 12, 2021 memorandum that she hopes to change if the right case and opportunity arises. The changes urged by General Counsel Abruzzo, summarized below, would significantly restrict the rights of both non-union and unionized employers.

1. Inherently Concerted Doctrine: Regardless of an employer’s union or non-union status, Section 7 of the National Labor Relations Act (NLRA) protects employees’ rights to engage in concerted activity for their mutual aid or protection, while Section 8 makes it unlawful for an employer to interfere with those rights. General Counsel Abruzzo seeks to expand the inherently concerted doctrine by bringing insurance coverage, race discrimination, gender discrimination, age discrimination, and sexual harassment under the umbrella of protected concerted activity.
2. Intermittent Strikes: Both unionized and non-unionized employers may expect changes in precedent surrounding intermittent strikes. Particularly, we may see the definition of an intermittent strike narrowed, thereby further limiting action that can be taken by employers in an attempt to continue business operations as normal.
3. Arbitration Agreements: Specifically, General Counsel Abruzzo hopes to change current case law stating that an employer does not violate the NLRA by promulgating a mandatory arbitration agreement in response to employee engagement in collective action. Making such agreements unlawful would impact non-union and unionized employers alike.
4. Offers of Additional Back Pay: General Counsel Abruzzo seeks to make changes with respect to restricting offers of heightened back pay in exchange for waiving reinstatement. The purpose of such an offer is to obtain a waiver of any right to reinstatement that the employee could seek under the NLRA, regardless of the employer’s union or non-union status. General Counsel Abruzzo seeks to make such offers unlawful.
5. Successorship: We may see changes in the ability to establish initial terms and conditions of employment by an employer where such terms and conditions differ from those established by its unionized predecessor. If an applicable case arises, General Counsel Abruzzo plans 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.
6. Union Membership: General Counsel Abruzzo seeks to overturn precedent establishing the process for an employer to anticipatorily withdraw recognition from a union. This change would result in the return of the unclear “last in time” rule, which is predicted to spark an increase in litigation.
7. Bargaining Obligations: The application of the status quo doctrine to post-contractual benefit increases may see changes in the upcoming months. On the remedial side, General Counsel Abruzzo intends to overturn precedent that is over 30 years old and seek make-whole compensatory remedies where it is found that an employer has unlawfully failed or refused to bargain.
8. Information Requests: General Counsel Abruzzo urges changes to precedent for cases involving employer refusal to furnish information related to relocation, as well as employer refusal to provide information prior to pre-disciplinary issues as an extension of Weingarten. Specifically, General Counsel Abruzzo seems to assert that a unionized employer must provide the union with questions that will be asked of the employee during a pre-disciplinary interview.
9. NLRA Coverage: Currently, individuals with disabilities working in a rehabilitative setting are not “employees” within the meaning of the NLRA. General Counsel Abruzzo seeks to extend NLRA coverage to such individuals by overturning a decision from nearly 20 years ago.

Given that General Counsel Abruzzo shows no signs of slowing down her efforts to drastically reshape labor law, employers are urged to track updates on these issues as changes to well-established precedent develops in the labor law landscape in 2023. Maynard Nexsen’s labor and employment attorneys stand ready to provide counsel and additional information to both unionized and non-unionized employers on matters covered by the NLRA, as well as any other labor and employment issues. Please contact the labor and employment attorneys at Maynard Nexsen if you have further questions.