For the first time in years the NLRB’s five-member Board, which decides cases and enacts regulations, has a Democratic majority. The Board will decide cases as presented. It is expected that case rulings will revise legal standards applicable to the workplace and reverse decisions from the previous Administration and the previous Republican majority on the Board.
The US Senate has also confirmed a new NLRB General Counsel, who has ambitiously set forth areas for attention and development of legal standards. On a day to day basis, the course the General Counsel sets will provide the landscape for employers, employees, and labor unions in dealing with local NLRB offices across the US.
New General Counsel Jennifer Abruzzo has issued a series of General Counsel Memorandums available at www.nlrb.gov which are summarized below.
GC 21-04 identifies numerous issues ranging from what is protected activity, legality of handbook policies and confidentiality instructions, bargaining duties, independent contractor misclassification, and more which will receive consideration from NLRB headquarters’ Division of Advice from cases across the country. The memorandum’s list of issues suggests that current legal standards will be ripe for challenge with charges and prosecution of employers. In other words even if employers act consistent with current legal standards, NLRB offices may prosecute in hopes of imposing a new and tougher standard to restrict employers while expanding rights of employees and unions.
GC 21-05 confirms that NLRB will aggressively pursue injunctive relief in federal courts under Section 10(j) of the National Labor Relations Act where NLRB officials believe that their usual administrative processes alone will not suffice to protect rights and provide remedies under the law.
GC 21-06 confirms that NLRB will expand its consideration of “make whole” remedies in cases against employers beyond what is currently considered appropriate to resolve a case. More guidance on remedies is to be expected.
Employers with and without union relationships should review these memorandums and consider their tolerance for risk, expense, and litigation. Query whether employers should consider these policies in the workplace actions taken today. Or, instead, query whether employers will want to defend themselves and compliance with the current legal standards, which may involve litigation at NLRB as well as into federal courts of appeal. You should figure that your activity in litigating such cases may be significant in developing the new legal standards the current Administration seeks to develop.
If the underlying law changes, which is also a pending issue in Congress because of the Protecting the Right to Organize Act (aka PRO Act), tougher standards for employers plus expansion of employee and union rights could arrive even faster. That legislation passed the House, has the President’s support, and awaits action in the Senate.
The sway of politics is typical in dealing with NLRB and labor law over the years. Different Administrations have different priorities. The Biden Administration has touted itself the most pro-union Administration ever which will, of course, affect different workplaces in different ways. This may be significant and problematic for non-union employers while less of a concern for employers with union relationships. Regardless of where your business stands, employers are advised to stay tuned and to reach out with any questions.