New NLRB General Counsel Announces Enforcement Priorities as Employers Prepare for Return of Obama-Era Precedent

Newly confirmed National Labor Relations Board General Counsel Jennifer Abruzzo announced her enforcement priorities in a lengthy memorandum released on August 12, 2021. The memorandum requires employers to rethink their policies and practices in a number of key labor law areas, or else be subject to potentially unfair labor practice litigation intended to reverse precedent or change the law.

Traditionally, the National Labor Relations Board (NLRB or Board) general counsel publishes a memorandum detailing case priorities that serves as a “roadmap” for changes in labor law during their tenure. These roadmaps have historically included issues that NLRB field offices must submit to the Division of Advice (and ultimately the general counsel) for centralized consideration and potential reversal. Prior memoranda were relatively brief, and while they often targeted cases from prior administrations, those targets were relatively limited in scope and number. For example, the similar memorandum from General Counsel Peter Robb was only five pages long.

In line with her predecessors, Abruzzo issued General Counsel Memorandum 21-04 (GC 21-04) on August 12, 2021. While Abruzzo’s memorandum follows precedent in identifying issues for her future focus, her memorandum is 10 pages in length and takes aim at nearly every significant Trump-era Board case. This is unsurprising given the Biden-Harris administration’s very public support for unionization, as well as Acting General Counsel Peter Ohr’s almost immediate withdrawal of numerous memoranda and initiatives by Trump-appointed General Counsel Robb.

So what can we expect from General Counsel Abruzzo’s office over the next four years? Based on GC 21-04, a wholesale return to Obama-era case law, and beyond.

First, the memorandum took aim at what Abruzzo deemed cases involving “board doctrinal shifts . . . overruling many legal precedents which [had previously] struck an appropriate balance between the rights of workers and the obligations of unions and employers.” The ultimate goal appears to be to reverse this Trump Board precedent and return to Obama-era precedent. Thus, the general counsel will identify pending unfair labor practice charges that present such test cases to send to the new Democratic-majority Board, which will have the power to accomplish these reversals. These legal issues include the following:

• Employer handbook rules – The prior Boeing[1] case established a balancing test to determine whether written employer rules were lawful, including confidentiality, nondisparagement, social media, media communication, civility, respectful and professional manner, offensive language, and “no cameras at work” rules. Employers should expect a return to the harsher, pre-Boeing standards for finding rules unlawful, on their face, if a cautious employee could interpret them to interfere with Section 7 rights to engage in union activity or other activity protesting work conditions on a group basis.
• Confidentiality provisions in investigations – The Trump Board’s decision in Apogee[2] (overruling Banner Estrella) assessed confidentiality rules applicable to workplace HR-driven investigations and gave employers more latitude to require confidentiality. Reversing this case would likely prohibit employers from requiring employees to keep an employer investigation confidential, even during sensitive investigations, like those involving harassment claims.
• Confidentiality provisions in separation/severance agreements – This will target the Board’s 2020 ruling in Baylor University finding lawful separation/severance agreements that contain confidentiality and nondisparagement clauses, as well as those prohibiting the departing employee from participating in claims brought by any third party against the employer.
• Union access – The Trump Board had ushered in a welcome change for employers by overruling Sandusky Mall via UPMC and Kroger[3] in favor of employer property rights. UPMC and Kroger redefined “discrimination” to allow an employer to exclude union representatives from, inter alia, access to public spaces on employer property when activities were not “substantially similar” in nature. This permitted an employer, for example, to lawfully welcome charity booths or sales, but prohibit union solicitation at the same time. Expect an expansion of union access rights to private property, regardless of the backdrop.
• Employee status – Independent contractor doctrine has often been on the back-and-forth list between administrations because independent contractors constitute an exclusion from National Labor Relations Act rights, and GC 21-04 makes no exception. SuperShuttle[4] had expanded independent contractor status, but GC 21-04 identifies it as a case that should be reversed.
• Jurisdiction over religious institutions – Bethany College had overruled Pacific Lutheran,[5] an Obama-era precedent that allowed the Board to assert jurisdiction over religious colleges and universities. Given that federal appeals courts had rejected Pacific Lutheran and held that the Bethany type of analysis is constitutionally required, it will be interesting to see how the general counsel can justify a change.
• Duty to bargain – A number of employer bargaining obligations made the GC 21-04 list, including a “contract coverage” standard for unilateral midcontract changes (MV Transportation[6]), and bargaining obligations for first contracts (Care One[7]).

Next, the memorandum focused on other areas where General Counsel Abruzzo would like to concentrate for potential change, although some are not recent Trump Board doctrinal changes:

• Misclassification of employees as independent contractors being an independent unfair labor practice – Velox Express, Inc.[8], 368 NLRB No. 61 (2017).
• Weingarten principles (the right to bring an employee “representative” to a disciplinary investigation meeting) in nonunion settings – IBM Corp.[9]
• Section 7 rights to strike and/or picket – Use of permanent replacements (Hot Shoppes[10]) and intermittent strikes (Wal-Mart Stores[11]).

The overarching theme of GC 21-04 is that any significant Trump-era Board decisions that granted an employer rights exceeding those granted by the Obama administration are now subject to attack by the general counsel and have the potential of serving as “test cases” to litigate against employers that otherwise complied with existing law.

Now is the time to consider the impact of GC 21-04 on your organization’s employment policies, documents, practices, and related collective bargaining and contract administration strategies. Employers should seek counsel on any issues confronting them that potentially fall under this important memorandum, regardless of whether the employer’s action is “lawful” under current NLRB precedent.

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Contacts

If you have questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Dallas
Robert Sheeder

Los Angeles
Nicole Buffalano
Douglas Hart
Harry Johnson

Philadelphia
Joseph Ragaglia

Washington, DC
Daniel Bordoni
David Broderdorf
Jonathan Fritts
Philip Miscimarra

[1] The Boeing Co., 365 NLRB No. 154 (2017).

[2] Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019).

[3] UPMC, 368 NLRB No. 2 (2019), and Kroger Ltd Partnership, 368 NLRB No. 64 (2019) (overruling Sandusky Mall, 329 NLRB 618 (1999)).

[4] SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019).

[5] Bethany College, 369 NLRB No. 98 (2020) (overruling Pacific Lutheran University, 361 NLRB 1404 (2014).

[6] MV Transportation, 368 NLRB No. 66 (2019).

[7] Care One at New Milford, 369 NLRB No. 109 (2020).

[8] Velox Express, Inc., 368 NLRB No. 61 (2017).

[9] IBM Corp., 341 NLRB 1288 (2004).

[10] Hot Shoppes, 146 NLRB 802 (1964).

[11] Wal-Mart Stores, 368 NLRB No. 24 (2019).