Less than a month after being sworn in as the new General Counsel of the NLRB, Jennifer Abruzzo defined a bold new direction for the Board’s enforcement priorities in a memo issued on August 12, 2021.  The memo, Mandatory Submissions to Advice GC Memorandum 21-04 (August 12, 2021), lays out subject matters that NLRB Regions must submit to the Office of the General Counsel for Advice prior to any decision.  Abruzzo’s memo makes clear she seeks to depart sharply from the priorities outlined by her predecessor, Peter Robb, and specifically targets for review areas where the Trump Board overruled past legal precedent.

The GC identifies three broad categories of topics that must be submitted for advice: (1) subject matter areas where, in the last several years, the Board overruled legal precedent; (2) new initiatives that the General Counsel would like to carefully examine, and; (3) matters traditionally submitted to Advice.

The lists of topics are telling and indicate to employers quite clearly that the Board is going to plot a new course from the Trump Board.

Topics Overturned by the Trump Board

The General Counsel all but promised change in these subject matters, criticizing the Trump Board for “overruling many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.”  The memo identified the following topics for reassessment:

  • Employer handbook rules: in particular the new, more lenient, test for the legality of an employer’s handbook and policies articulated The Boeing Co., 365 NLRB No. 154 (2017).
  • Confidentiality provisions: a slate of decisions which found confidentiality provisions in settlement agreements, workplace investigation procedures and arbitration agreements lawful.
  • Protected concerted activity: a variety of decisions which narrowed what constitutes limitations on protected concerted activity (i.e., activity protected by the National Labor Relations Act), highlighting in particular a reassessment of decisions finding that limiting the use of email to only workplace communications lawful.
  • Test for Unlawful Union Animus: in particular, Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019) and other cases heightening the animus requirement for showing unlawful union discrimination.
  • Remedies Available: decisions which lowered the likelihood that an employer must offer reinstatement and lowered the standard for Regions to accept settlement agreements;
  • Union Access: cases which limited certain employees and union representatives from the employer’s property;
  • Union Dues: cases which permitted employers to unilaterally cease remitting union dues after a collective bargaining agreement expires and imposed more duties on unions in relation to collecting dues;
  • Employee Status: cases involving a 2019 decision which made it more likely that an employee with entrepreneurial opportunity would be deemed an independent contractor;
  • Religious institutions: Bethany College, 369 NLRB No. 98 (2020), which articulated a new standard for assessing whether the Board has jurisdiction over a religious education institution;
  • Employer duty to recognize and bargain with a union: the GC identifies multiple key doctrines developed over the last four years regarding a union’s waiver of the right to bargain which provided employers with the right to promulgate policies without bargaining with a union, and decisions permitting employers to implement changes after a collective bargaining agreement expired;
  • Deferral: cases involving deferral of discharge and discipline cases to arbitration and the more permissive standard reinstated by the Trump Board.

Other New Initiatives

The memo identifies initiatives to review seven other subject matters as well:

  • Employee Status: cases involving misclassification of employees as independent contractors and the coverage of the Act to individuals with disabilities and applicants;
  • Weingarten: involving the applicability of a right to information in the pre-disciplinary interview context and whether the right to representation applies in non-unionized settings as well;
  • Jurisdiction of NLRB: assessing the jurisdictional contours between the NLRB and the National Mediation Board (jurisdiction over rail and airline industries);
  • Employer duty to recognize and bargain with a union: in addition to identifying issues related to surface bargaining and a refusal to furnish information related to a plant relocation, the GC particularly identified that the Board will consider overturning Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007), which permits mid-term withdrawals of recognition after the third-year of a contract;
  • Employees’ rights to strike and/or picket: cases involving replacement of strikers, the broad definition of an intermittent strike, and strikes with an unlawful secondary object;
  • Remedies and compliance: issues involving make-whole remedies and a discriminatee’s duty to conduct an adequate search for interim employment;
  • Interference with employee’s rights: cases regarding statements that imply employees access to management will be limited if a union is voted in, involving an employer’s threat to close a plant where the threat was not disseminated, and the promulgation of mandatory arbitration agreement in response to employee protected activity.

The memo concludes with a recitation of other casehandling matters that traditionally have been submitted to Advice.

More to Come and Takeaways

The memo, a dense ten pages, is a signal that the Board will be plotting a new course for at least the next four years.  This combined with the recent confirmation of two new Board members (one already seated, and the other who will be seated later this month) makes clear that the ideology and leaning of the NLRB is rapidly changing.  The GC’s memo should be a clear signal to all that significant changes to labor law precedent are on the horizon. As always, we will keep you informed of any new developments.

Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Yonatan Grossman-Boder Yonatan Grossman-Boder

Yonatan (Yoni) Grossman-Boder is an associate in the Labor & Employment Law Department. Yoni assists clients in a wide range of labor and employment law matters, including litigations, administrative proceedings, arbitrations, internal investigations, labor-management relations and claims of employment discrimination, harassment, retaliation, and…

Yonatan (Yoni) Grossman-Boder is an associate in the Labor & Employment Law Department. Yoni assists clients in a wide range of labor and employment law matters, including litigations, administrative proceedings, arbitrations, internal investigations, labor-management relations and claims of employment discrimination, harassment, retaliation, and wrongful termination. He frequently represents clients across a variety of industries and sectors, including educational institutions, financial services, media and entertainment companies, health services and professional services.

Yoni clerked for the Honorable Richard M. Gergel of the U.S. District Court for the District of South Carolina.  While attending Duke University School of Law, Yoni served as the publication and lead articles editor of Law and Contemporary Problems.

Prior to coming to Proskauer, Yoni served as a legal intern at the New York Human Resources Administration Employment Law Unit. As a legal intern, he worked on a variety of employment matters, including employment discrimination investigations and litigation. While a summer associate at Proskauer, Yoni co-authored an article on retiree health care benefits under ERISA titled “Understanding M&G Polymers v. Tackett,” published by Benefits Magazine in April 2015.