The Shifting And Aggressive Priorities Of The New NLRB General Counsel Spells Trouble For Employers

President Biden’s new National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo, recently issued two internal agency memoranda that set the stage for sweeping changes to federal labor law in favor of unions.

In Memorandum GC 21-04 to the NLRB’s Regional Directors and Resident Officers (who run the agency’s local offices that process unfair labor practice charges and handle union representation elections), Ms. Abruzzo details the types of issues that must be submitted to the General Counsel‘s Division of Advice for “centralized consideration,” before any decision concerning the issuance of a complaint or litigation strategy is formalized. In this way, she is able to exert control over how such issues are assessed and litigated, including prioritizing and “teeing up” cases that would allow the Biden-era NLRB to reverse many of the common sense, employer-friendly decisions issued by the Trump-era NLRB.

The Memo clearly reflects that one of Ms. Abruzzo’s top priorities is to facilitate the NLRB overturning the current standards for determining whether handbook rules are lawful under the National Labor Relations Act (NLRA), including those pertaining to civility, media communication, confidentiality, and non-disparagement. She requires regional staff to submit for her review any case involving the applicability of The Boeing Co. (2017), the important Trump-era NLRB ruling that helped restore common sense and balance to the NLRB’s standards for evaluating workplace rules after the Obama-era NLRB’s all-out assault on such rules.

General Counsel Abruzzo also intends to scrutinize all cases concerning confidentiality and non-disparagement provisions in severance and arbitration agreements, confidentiality instructions in workplace investigations, employee use of employer email systems, union access to employers’ premises, and employee/independent contractor status, as well as cases involving what type of behavior is protected by the NLRA. These are only a few of the many areas identified in her Memo; the list of issues Ms. Abruzzo wants to address is long – and very telling.

In a second internal agency memorandum, Memorandum GC 21-05, General Counsel Abruzzo declares her intention to aggressively pursue injunctive relief under Section 10(j) of the NLRA and directs regional staff to ensure they are vigorously using this litigation tool. This process involves filing a lawsuit with a federal district court to obtain a temporary restraining order and/or permanent injunction, mainly against employers, to stop alleged unfair labor practices while the administrative complaint is being litigated before administrative law judges and the NLRB. The asserted reason for such injunctive relief is to mitigate “remedial failure due to the passage of time.” Injunctive relief actions are extremely expensive and divert the parties’ time, energy and attention from the underlying matters at hand. Such an action requires the employer to battle on three fronts – in the workplace, before the NLRB, and before the court.

Ms. Abruzzo explains that injunctive relief is appropriate in cases involving discharges during an organizing campaign, NLRA violations after certification of a union, withdrawal of recognition, and a successor’s refusal to bargain and/or hire a predecessor’s employees. She believes that Section 10(j) injunctions are “one of the most important tools available to effectively enforce the Act” and promises to “aggressively seek Section 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders.”

Given the fast approaching sea-change at the NLRB, employers should assume that most, if not all favorable NLRB decisions from the Trump-era are targeted for reversal. Moreover, employers should be prepared for increased litigation with the NLRB during the foreseeable future. As such, we recommend all Nevada employers covered under the NLRA (most private employers) do the following:

• Read the General Counsel’s Memos;
• Review and update handbooks and internal rules with labor counsel;
• Take a cautious approach when disciplining employees for the types of conduct identified in her Memos;
• Consider training supervisors on key concepts under the NLRA, including how to recognize what constitutes “protected concerted activity”;
• Quickly secure labor counsel to assist with new or pending NLRB matters and any union organizing activity; and
• If you are already a party to a collective bargaining agreement or are currently negotiating a new contract, consult with labor counsel regarding key issues and strategies.

KZA’s attorneys are very well versed in labor law and many of our partners and associates have extensive experience litigating before the NLRB. We are always available to help you with labor matters, questions, and training.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.