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Pro-Union Changes Coming at the NLRB

The newly appointed General Counsel, Jennifer Abruzzo, of the National Labor Relations Board has just given the business community a road map of her pro-union agenda. Ms. Abruzzo comes to the key General Counsel position after serving as an attorney for the Communication Workers of America. On August 12, 2021, Ms. Abruzzo issued a memorandum to all NRLB Regional Directors entitled Mandatory Submissions to Advice. This means that NLRB Regional offices must seek advice from Washington before acting on cases with certain controversial issues. One paragraph in the advice memorandum sums it up.

The memo is divided into three sections: The first section identifies cases and subject matter areas where, in the last several years, the Board overruled legal precedent; the second section identifies other initiatives and areas that the General Counsel wants to carefully examine; and the third section identifies other casehandling matters traditionally submitted to Advice. While the memo is extensive, it is not exhaustive and other memos may be released in the future as policy issues and cases arise.

The message is clear. Previous pro-business rulings will systematically be reversed. New pro-union case law will soon apply. Here are some of the areas Ms. Abruzzo mentions:

  • Employer handbook rules – expect much closer scrutiny of facially neutral handbook rules such as confidentiality, non-disparagement, social media, media communication, civility, respectful and professional conduct, offensive language, and no cameras.
  • Confidentiality provisions/Separation agreements and instructions – we will see closer monitoring of separation agreements that contain confidentiality and non-disparagement clauses as well as closer monitoring of workplace investigations where there are confidentiality issues.
  • What constitutes protected concerted activity – there is likely to be a major broadening of the interpretation of what constitutes protected concerted activity. The memo specifically comments on health and safety issues as concerted activity.
  • Wright Line/General Counsel’s burden – it will become much tougher for employers to defend against charges that the reason for termination was pretextual.
  • Remedial issues – there will be much closer scrutiny of settlements, particularly where part of the settlement is a waiver of reinstatement.
  • Union access – look for broadened rights of a union to access of company property and a redefining of issues of an employer’s right to exclude union representatives from access to public spaces on employer property.
  • Union dues – there will be reexamination of the issue of whether an employer may lawfully cease checking off and remitting dues to the union following contract expiration.
  • Employee status – independent contractor status will become tougher to establish.
  • Employer duty to recognize and/or bargain – it will become substantially easier for unions to prove successorship and standards on unilateral change will make it tougher for employers to argue that the issue is covered by the contract.
  • Deferral – caselaw is likely to change  on the issue of giving deference to arbitrator’s awards.
  • Weingarten – look for the law to flip flop once more and non-union employees will be given Weingarten rights.
  • Employees’ Section 7 right to strike and/or picket – look for tougher standards on the use of permanent replacements and on the issue of employer’s right to set terms and conditions of employment for replacements which may be superior to those that had paid to striking union employees.
  • Employer interference with employees’ Section 7 rights – We will see substantially tougher standards for employer statements in organizing campaigns, particularly on issues of statements that employee access to management will be limited if employees opt for union representation as well as threats of plant closure.

Look for pro-union decisions in all of these areas. We will have to be cautious in advising clients because the rules are about to change. For those interested in reading Ms. Abruzzo’s entire memorandum, click here.

Questions? Contact attorney Richard Wessels in our St. Charles office at (630) 377-1554 or by email at riwessels@wesselssherman.com.

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