On August 12, 2021 NLRB General Counsel Jennifer A. Abruzzo issued her “Mandatory Submissions to Advice” memorandum (Memorandum GC 21-04), outlining her agenda items and priority issues for NLRB Regional Directors, Officers-in-Charge, and Resident Officers. The memorandum offers a glimpse into a number of issues the new General Counsel believes need to be re-evaluated, largely because, as she indicated in the memo, the prior Board “overrul[ed] many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.” Given the current political climate, and the position of the General Counsel, employers can expect significant NLRB policy changes in the coming years.
The memo is divided into three sections. The first section Identifying “doctrinal shifts” of the past several years. The memorandum identifies 11 precedential topics she will be focusing on, likely to the detriment of employers, those being:
- Employer Handbook rules
- Confidentiality provisions/Separation agreements and instructions
- What constitutes protected concerted activity
- Wright Line/General Counsel’s burden
- Remedial issues
- Union access
- Union dues
- Employee status
- Board jurisdiction over religious institutions
- Employer duty to recognize and/or bargain
The second section identifies seven additional areas and initiatives the General Counsel wants to carefully examine during her tenure, including: (1) Employee status, (2) Weingarten, (3) National Mediation Board vs. NLRB jurisdiction, (4) Employer duty to recognize and/or bargain, (5) Employees’ Section 7 right to strike and/or picket, (6) Remedies and compliance, and (7) Employer interference with employees’ Section 7 rights.
The third and final section identifies a litany of other casehandling matters the General Counsel will be focusing on, ranging from cases involving injunctions, partial lockouts, and the need to harmonize the NLRA with local, state and other federal statutes.
While the General Counsel’s memorandum is extensive, it only generally outlines topics that General Counsel, and presumably the Biden administration, will be focusing on over the next several years. It is not entirely clear how the General Counsel plans to change the matters identified. It is fair to assume, however, that the General Counsel will focus on changing the identified topics in such a way to further protect employees and their right to collectively bargain. At this time we don’t know precisely what changes will be made, but it is fair to assume the Board will seek to reimplement prior-democratic era interpretations of the issues identified. Unless and until a case is actually before the NLRB, how the current law will be changed is unknown.
Based on the topics covered in the General Counsel’s memorandum, employers approaching collective bargaining should think strategically about the current state of their management’s rights clauses, and other reserved rights as outlined in their CBA. The General Counsel may very well focus on specific rights and waivers outlined in the CBA. Employers should likely proceed with trying to obtain contract language that is as specific as possible in the near future.
Employers should also be thinking more critically about what constitutes protected concerted activity, looking closely at workplace rules that may be focused on limiting certain speech or behavior at work. This exercise should also not be limited to unionized employers as non-union employees have Weingarten rights, and a proactive Board will seek to ensure that standard is maintained, and potentially even expanded. Non-union employers need to be on guard for expansive labor policies that the new General Counsel could seek to enforce, likely attempting to distance the current Board from policies implemented and utilized during the Trump administration.
If you have any questions regarding the General Counsel’s memorandum, or issues related to labor and employment law, feel free to contact an attorney in Frantz Ward’s Labor & Employment Practice Group.