NLRB general counsel’s memo provides roadmap for different direction

In her first memo as general counsel for the US National Labor Relations Board, Jennifer Abruzzo last week issued the Mandatory Submissions to Advice Memorandum, which instructs all regional directors, officers-in-charge, and resident officers to send cases related to specific legal precedents she intends to change to the Office of the General Counsel for Advice prior to any decision.

The memo, issued Aug. 12, is divided into three sections. The first section identifies cases and subject matter areas where, in the last several years, the board overruled legal precedent; the second section identifies other initiatives and areas that the general counsel wants to carefully examine; and the third section identifies other case-handling matters traditionally submitted to advice. The NRLB noted that the memo is not exhaustive and other memos may be released in the future as policy issues and cases arise.

“As our country fights a horrific pandemic and returns from an unprecedented economic recession, it is critical that the NLRB vigorously protect the rights of workers to freely associate and act collectively to improve their wages and working conditions,” Abruzzo said. “This memo should be seen as a road map for ways in which the Agency will better effectuate its mission and congressional mandate, including protecting the right to engage in concerted activities for mutual aid or protection and encouraging collective bargaining.”

Abruzzo’s memo makes clear she seeks to depart sharply from the priorities outlined by her predecessor, Peter Robb, and specifically targets for review areas where the Trump board overruled past legal precedent, The National Law Review reported.

“The memo, a dense 10 pages, is a signal that the board will be plotting a new course for at least the next four years,” the publication stated. “This combined with the recent confirmation of two new board members (one already seated, and the other who will be seated later this month) makes clear that the ideology and leaning of the NLRB is rapidly changing. The GC’s memo should be a clear signal to all that significant changes to labor law precedent are on the horizon.”

Doctrinal Shifts Include Employee Status and Handbook Cases

Contingent workforce managers may want to pay special attention to the general counsel’s interest in employee status cases involving the 2019 decision in SuperShuttle DFW Inc., 367 NLRB No. 75 (overruling FedEx Home Delivery, 361 NLRB 610 (2014)), which made it more likely that an employee with entrepreneurial opportunity would be deemed an independent contractor.

In addition, employer handbook cases are also on Abruzzo’s radar — in particular the new, more lenient, test for the legality of an employer’s handbook and policies articulated in the 2017 case The Boeing Co., 365 NLRB No. 154.

The memo shows that the NLRB could turn up the heat on companies operating in the gig economy that rely on independent contractors, including Uber Technologies Inc. (NYSE: UBER), DoorDash Inc. (NYSE: DASH) and Grubhub Inc., Bloomberg Law reported.

The general counsel’s office may push forward cases that result in a board ruling that makes it harder for companies to classify workers as contractors, something gig economy companies have been fighting with state ballot measures, according to Bloomberg Law. In addition, Abruzzo is eyeing a change in precedent to outlaw misclassifying a worker as an independent contractor — making it an unfair labor practice in itself.

The list of topics identified for reassessment, as described by The National Law Review, include:

Employer handbook rules. In particular the new, more lenient, test for the legality of an employer’s handbook and policies articulated in The Boeing Co., 365 NLRB No. 154 (2017).
Confidentiality provisions. A slate of decisions which found confidentiality provisions in settlement agreements, workplace investigation procedures and arbitration agreements lawful.
Protected concerted activity. A variety of decisions which narrowed what constitutes limitations on protected concerted activity (i.e., activity protected by the National Labor Relations Act), highlighting in particular a reassessment of decisions finding that limiting the use of email to only workplace communications lawful.
Test for unlawful union animus. In particular, Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019) and other cases heightening the animus requirement for showing unlawful union discrimination.
Remedies available. Decisions which lowered the likelihood that an employer must offer reinstatement and lowered the standard for regions to accept settlement agreements.
Union access. Cases which limited certain employees and union representatives from the employer’s property.
Union dues. Cases which permitted employers to unilaterally cease remitting union dues after a collective bargaining agreement expires and imposed more duties on unions in relation to collecting dues.
Employee status. Cases involving a 2019 decision which made it more likely that an employee with entrepreneurial opportunity would be deemed an independent contractor.
Religious institutions. Bethany College, 369 NLRB No. 98 (2020), which articulated a new standard for assessing whether the Board has jurisdiction over a religious education institution.
Employer duty to recognize and bargain with a union. The General Counsel identifies multiple key doctrines developed over the last four years regarding a union’s waiver of the right to bargain which provided employers with the right to promulgate policies without bargaining with a union, and decisions permitting employers to implement changes after a collective bargaining agreement expired.
Cases involving deferral of discharge and discipline cases to arbitration and the more permissive standard reinstated by the Trump NLRB.