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Newly Appointed NLRB General Counsel Sets Out Key Priorities and Mandates Submissions to Division of Advice
Practical Law Legal Update w-032-2964 (Approx. 5 pages)
Newly Appointed NLRB General Counsel Sets Out Key Priorities and Mandates Submissions to Division of Advice
by Practical Law Labor & Employment
| Published on 17 Aug 2021 • USA (National/Federal) |
The National Labor Relations Board (NLRB) General Counsel has issued General Counsel Memorandum GC 21-04, "Mandatory Submissions to Advice" directing NLRB Regional Offices to submit cases concerning more than 60 specific topics to the Division of Advice. It indicates the many precedents that the General Counsel is likely to urge the NLRB to minimize, supplement, or overrule.
On August 12, 2021, the recently appointed NLRB General Counsel, Jennifer Abruzzo, issued General Counsel Memorandum GC 21-04, "Mandatory Submissions to Advice," which outlines the key subject matter areas that will receive dedicated consideration during her four-year term. Specifically, the memorandum directs NLRB Regional Offices to submit cases concerning more than 60 specific topics to the Division of Advice (Advice), which will re-examine and advise the General Counsel on whether changes are necessary to effectuate the mission of the NLRA.
The memorandum divides these issues into three categories. The first section identifies cases and subject matter areas where the panel (Board) heading the NLRB's judicial functions has made significant doctrinal shifts and overruled legal precedent during the past several years. Specifically, the General Counsel highlights cases concerning:
- Employer handbook rules, particularly cases involving the applicability of:
- Boeing Co., which imposed a new framework for evaluating the legality of employee handbook rules (365 N.L.R.B. No. 154 (Dec. 14, 2017); for more information, see The NLRB's Boeing Categories for Employment Rules Chart);
- L.A. Specialty Produce Co., which heightened the General Counsel's initial burden of proving that a reasonable employee would (as opposed to could) interpret a facially neutral work rule as potentially interfering with the exercise of Section 7 rights (368 N.L.R.B. No. 93 (Oct. 10, 2019); for more information, see Legal Update, NLRB Clarifies Boeing Test and Finds Confidentiality and Media Contact Rule Lawful); and
- AT&T Mobility, LLC, in which the NLRB overruled the third prong of Lutheran Heritage Village-Livonia (343 N.L.R.B. 646 (2004)) and held that applying a lawful, facially neutral rule to unlawfully restrict the exercise of Section 7 rights does not preclude the employer from continuing to maintain the rule (370 N.L.R.B. No. 121 (May 3, 2021); for more information, see Legal Update, NLRB Upholds No-Recording Policy and Sets New Standard Governing Workplace Policies Applied to Restrict Section 7 Activity).
- Confidentiality provisions and separation agreements and instructions.
- What constitutes protected concerted activity.
- The General Counsel's burden under Wright Line.
- Remedial issues.
- Union access to employer property.
- Union dues.
- Employee versus independent contractor status.
- The Board's jurisdiction over religious institutions.
- The employer's duty to recognize or bargain with the union.
- Deferral to arbitration.
The second section of the memorandum identifies other issues that the General Counsel believes warrant reconsideration during her term even though they have not been the subject of a more recent Board decision. Specifically, the General Counsel highlights various Board decisions on the following subjects:
- Employee status.
- Weingarten principles.
- Distinguishing National Mediation Board from NLRB jurisdiction.
- An employer's duty to recognize or bargain with the union.
- Employees' Section 7 rights to strike or picket.
- Remedies and compliance issues.
- An employer's interference with employees' Section 7 rights.
The final section of the memorandum provides case-handling guidance regarding other matters traditionally submitted to Advice.
The General Counsel notes that this memorandum does not provide an exhaustive list of issues that her office intends to address. However, it highlights many issues and policy initiatives likely to significantly affect employers' business operations and calculations of litigation risks over the coming months and years.
The memorandum:
- Does not overrule current binding Board precedent.
- Sets NLRB Regions' investigatory and prosecutorial agenda, in part indicating:
- the types of charges that the current General Counsel wants Regional Offices to pursue (and that the previous General Counsel would have directed Regional Offices to dismiss); and
- the current Board precedent that the General Counsel will urge the soon-to-be-Democrat-majority Board to overrule or amplify.