In late July, two well-known union attorneys were confirmed by the Senate as members of the National Labor Relations Board (NLRB), David Prouty and Gwynne Wilcox. Prouty replaces Republican member William Emanuel, whose term expires in late August, and Wilcox will fill a vacant seat, giving the Democrats a 3-2 edge. Wilcox is best known for suing McDonald's on behalf of the Fight for $15 worker advocacy group.
Around the same time, Jennifer Abruzzo, another former union attorney, was confirmed as General Counsel of the NLRB, and wasted no time issuing a document called Mandatory Submissions to Advice Memorandum, which lays out a clear agenda for all field offices of the NLRB addressing unfair labor practice charges. The first section of the memo identifies subject matter areas where she considers Board precedent to have been overruled, and thus wants her office to review. Those areas are as follows:
- Employer handbook rules - To review handbook rules developed during the Trump Administration and their applicability to confidentiality rules, non-disparagement rules, social media rules, media communication rules, civility rules, respectful and professional manner rules, offensive language rules, and no camera rules.
- Confidentiality provisions - separation agreements and instructions - To address separation agreements that contain confidentiality and non-disparagement clauses as well as those prohibiting the departing employee from participating in claims brought by any third party against the employer in return for severance monies, and also confidentiality rules or instructions given to employees pertaining to workplace investigations.
- What constitutes protected concerted activity - To review cases addressing what rises to the level of concerted activity and what constitutes mutual aid or protection, mentioning a case involving a bathroom conversation as not involving working conditions, and cases involving the applicability of the inherently concerted doctrine, such as issues involving employees' health and safety. Other priorities in this area including rules governing employees' rights to use an employer's email system as well as use of other electronic platforms in the workplace, and cases distinguishing no-solicitation policies from mere "union talk."
- Wright Line/General Counsel's Burden - To review a variety of theories dealing with the burden of proof in unfair labor practice prosecutions.
- Remedial Issues - To review cases involving unfair labor practice settlements where the employer offers significantly more back pay than is owed in return for a waiver of the employee's reinstatement, and other standards for the acceptance of settlement agreements.
- Union access - To review cases involving access to a property owner that tries to exclude off-duty contractor employees seeking access to the premises as well as excluding union representatives from access to public spaces on employer property.
- Union Dues - To review cases dealing with the issue of whether the employer may lawfully cease checking off union dues following the expiration of the collective bargaining agreement, as well as cases involving objections to union dues and the type of disclosures necessary that show that lobbying costs were not included.
- Employee status - To review the burden of proof of establishing independent contractor status.
- Employer duty to recognize and/or bargain - To review how broadly management rights clauses in bargaining agreements can be interpreted; circumstances where a successor employer refuses to hire a certain number of the predecessor's workforce to avoid a finding of successorship; whether an employer stating a "competitive disadvantage" to a union in negotiations has to furnish financial records; limiting unlawful implementation of a last and final offer in negotiations; and whether pay or benefit increases are required post-contract expiration, and a number of other listed situations.
The second part of the memorandum sets forth other areas in which Abruzzo would like to carefully examine (and possibly change):
- Employee status - To review whether it is an unfair labor practice where an employer has misclassified persons as independent contractors; whether someone not generally interested in seeking employment is nevertheless an employee; a wide variety of issues pertaining to whether an employee is entitled to representation in a disciplinary interview in both union and non-union situations; whether an employer has engaged in so-called "surface" collective bargaining and thus in bad faith; whether the so-called "contract bar" to union decertifications should extend beyond three years; circumstances of whether an employer can be forced to recognize a union where it presents evidence of a card majority; cases involving the permanent replacement of economic strikers; what constitutes an intermittent strike that is unprotected; legitimacy of statements that employee access to management will be limited to employees who choose a union, and a variety of other issues.
The third section in the memo identifies other case handling matters that should continue to be submitted to her. Some 16 different areas are listed, including cases involving employer lock-outs; injunctions during the pendency of unfair labor practice charges; cases involving where an employer could be ordered to bargain with the union because of its unfair labor practices; discharges during union organizing drives; first contract bargaining; and settlement agreements.
Editor's Note: President Biden is proud of his position as the "most pro-union President in history." While the above memo from the new General Counsel only indicates areas in which she intends to "review," the purpose is quite obvious, that she intends to consider changing all those doctrines to a more pro-union position.
This is part of our September 2021 Newsletter.
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