Don’t Let the Pendulum Hit You as it Swings: NLRB General Counsel Previews a Pro-Labor Agenda

With a new President comes a shift in the balance of power at the National Labor Relations Board. To start, shortly after President Biden took office in January, the NLRB’s sole Democrat, Chairman McFerran, issued several dissents that provided a window into what the future would look like under a Biden Board. Those dissents addressed confidentiality in arbitration agreements (here), implementation of employee handbooks (here), investigative confidentiality rules (here), standards for determining whether a party has engaged in bad faith bargaining (here), and policies prohibiting recordings in the workplace (here).

On August 12, 2021, the NLRB’s top lawyer, General Counsel Jennifer Abruzzo, issued a memorandum instructing regional offices to send cases relating to certain issues to her office for consideration. Nobody should be surprised at Abruzzo’s desire to overturn several important Trump Board decisions, as this happens each time a new NLRB majority is established.  However, the memorandum, which includes all of the issues flagged by Chairman McFerran in her dissents, goes much further.

The GC’s memorandum highlighted more than 40 Trump-era decisions that are up for reconsideration, based on Abruzzo’s view that they overruled legal precedent and are not consistent with the basic purpose of the National Labor Relations Act to foster unionization. They include, among many others:

• The Boeing Co. (2017) and the appropriate standard for determining the legality of workplace/employee handbook rules. This will include any Trump Board decision that analyzed a rule or handbook provision under the Boeing standard. As we previously reported, Chairman McFerran espouses a return to the analytical framework in Lutheran Heritage Village-Livonia -- the mere maintenance of a neutral work rule will violate the Act if employees would reasonably construe the rule to prohibit union and other protected concerted activity.
• Baylor University Medical Center (2020), which found lawful separation agreements containing confidentiality and non-disparagement provisions, in addition to Trump-era decisions addressing confidentiality rules relating to workplace investigations and confidentiality provisions in arbitration agreements. In recent dissents, McFerran has been highly critical of any confidentiality provisions, opining that they require employees to “suffer in silence at work.”
• Various decisions discussing the appropriate standard for determining whether an employee has engaged in Section 7 protected activity. Importantly for employers, a desire to return to Purple Communications will likely mean protecting more than just communications in emails, but also other electronic communications and videoconferencing platforms.
• Decisions addressing the standard to prove violations of the Act under Wright Line.
• Tobin Center for the Performing Arts (2019) -- the extent to which property owners can deny access to third parties seeking to engage in Section 7 activity.
• Valley Hospital Medical Center (2019) -- the right of an employer to cease deducting union dues upon expiration of a labor agreement.
• MV Transportation (2019), which abandoned the clear and unmistakable waiver standard to determine whether an employer’s unilateral action was permitted, and instead adopting a “contract coverage” standard, under which unilateral action is permitted if it falls within the compass or scope of certain contractual language in the labor agreement.
• SuperShuttle DFW, Inc. (2019) -- the standard for determining whether an individual is an independent contractor. The memorandum also suggests that the simple act of misclassifying a worker as an independent contractor can be an unfair labor practice. A shift in precedent relating to this issue ups the ante for companies operating in the gig economy.

But the memorandum goes beyond evincing an intent to overturn the Trump Board’s precedent – it also “identifies other initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones I would like to carefully examine.” Those include:

• Two issues relating to Weingarten rights: their application to non-union workforces and whether an employer must provide the union with its interview questions in advance of the interview.
• Information requests when an employer intends to relocate its operations.
• The right of an employer to withdraw recognition after the third year of a contract of longer duration.

Abruzzo’s memorandum also signals a critical modification to the existing card check rules- requiring regional offices to send to her office cases where an employer refuses to recognize and bargain with a union if the employer has either engaged in unfair labor practices or cannot “explain its reason for doubting majority status in rejecting the union’s demand.” If adopted, this standard would make it more difficult for an employer to insist on an election rather than bargain with a union in the face of a showing of majority support.

The fact that the new General Counsel has requested that regional offices forward cases raising certain issues to her does not automatically mean that the Board will either reverse a decision of the Trump Board or extend the protections of the NLRA further than they currently exist.  However, given the makeup of the newly-constituted Biden Board, there is little question what the future holds.