New National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo appears ready and willing to help deliver on President Joe Biden’s promise to be “the most pro-union president [we’ve] ever seen.”
Abruzzo issued a recent memorandum listing various types of cases on which the NLRB’s regional directors will be required to seek guidance during her term so that she can execute a “centralized” strategy in changing the labor law landscape. According to the memorandum, such centralized consideration is necessary in light of the “wide array of doctrinal shifts” that the board has undertaken in the past several years. In other words, the new general counsel is looking for immediate opportunities to overturn Trump-era NLRB precedent and steer the law in a decidedly pro-labor direction.
While not a welcome development for employers, the new general counsel’s intention to seek reversal of Trump board precedent isn’t exactly a startling revelation. To the contrary, most practitioners have fully expected that a Biden board would seek to reinstate Obama-era precedent that the Trump board overturned. Thus, the fact that the memorandum directs regional staff to seek centralized guidance on issues such as handbook rules, independent contractor status, post-expiration termination of dues checkoff practices, use of employer email systems for union organizing and other such matters that the Trump board addressed is not surprising.
What is surprising, however, is the degree to which the new general counsel appears determined to move beyond simply reinstating Obama-era precedent and impose what arguably amounts to labor law reform by administrative fiat. Perhaps most alarming, the memorandum requires regional staff to seek guidance in cases where an employer declines to recognize a union based on a showing of authorization cards without offering an explanation for doubting the union’s claim of majority status. In short, the inclusion of this reference in the memorandum suggests that the new general counsel is looking for ways to impose a form of card check recognition without the need for congressional action.
But that’s not all. The memorandum also, for example, directs regional staff to seek guidance in cases involving the terms and conditions of employment that an employer offers to strike replacements and/or an employer’s motivation for hiring permanent replacements during a strike. The inclusion of these issues in the memorandum strongly implies that the general counsel’s office will search for ways to curtail (and perhaps eviscerate) employers’ right to use strike replacements during a work stoppage. The memorandum further suggests that the new general counsel will seek to expand an employer’s already expansive duty to provide information, including the potential imposition of an obligation to provide interview questions prior to an employee investigatory interview.
Bottom Line: While there has been an expectation that the NLRB would move in a pro-labor direction since Biden took office, the move may be even more pronounced and wide-ranging than anticipated. Over the next few weeks, we’ll bring you additional information concerning the issues listed in the new general counsel memorandum discussed above.