Vice President, Labor Policy
August 19, 2021
The National Labor Relations Board (NLRB) has a new sheriff, so to speak, in the person of Jennifer Abruzzo, who was confirmed as the agency’s General Counsel in July, and while her confirmation is only a few weeks old, she is making it clear she that she has her own agenda.
On August 12, Abruzzo issued a guidance memo in which she signaled her priorities by defining what types of cases must be presented to the Office of General Counsel’s (OGC) Division of Advice. Since the General Counsel serves as the NLRB’s prosecutor, such submissions will allow Abruzzo to tee up cases involving issues of particular interest for the Board to consider, which will be particularly useful once the Democrats regain the majority on August 27 given their determination to reverse many of the Trump-era decisions.
For observers of labor policy, Abruzzo’s (and her Democratic Board colleagues’) intentions come as no surprise. Nevertheless, Abruzzo’s memo makes clear that she has little interest in maintaining the current Board’s more balanced approach to labor law and instead intends to return to the lopsided, anti-employer policies seen under the Obama administration.
Among the issues that Abruzzo intends to address are several that have been caught in a destabilizing game of policy ping-pong for years, including the following:
- The Employee handbook.During the Obama administration, the NLRB became so fixated on nitpicking employers’ workplace policies that the U.S. Chamber published an entire report highlighting the theater of the absurd that had resulted. The current Board tried to restore some semblance of sanity with its 2017 ruling in Boeing, which created a more reasonable framework for evaluating the legality of workplace rules.
- Confidentiality agreements. A series of Trump-era decisions upheld the use of confidentiality agreements in various circumstances, such as workplace investigations, which overturned prior decisions deeming them to be unlawful.
- Union access to employer property. The Trump-era Board upheld employers’ ability to control their own private property by prohibiting access to public spaces (e.g., a cafeteria) and to employers’ emails systems by non-employees for promotional or organizational activity. That holding overturned previous rulings that union organizers could not be denied such access.
- Burden of proof for establishing anti-union animus. In its 2019 Tschiggfrie Properties, Ltd., decision, the Board overturned an Obama-era decision and narrowed its “Wright Line” test for determining anti-union animus by holding that “evidence of animus must support finding that a causal relationship exists between the employee’s protected activity and the employer’s adverse action against the employee.”
- Employer obligations after contract expiration.Under longstanding precedent dating back to the 1960s, the Board had held that an employer’s obligation to check off union dues ends when its collective-bargaining agreement containing a checkoff provision expires, but the Obama-era Board overturned that with its 2015 Lincoln Lutheran of Racine decision. The Trump-era Board restored the prior interpretation in Valley Hospital Medical Center in 2019, which overturned Lincoln Lutheran.
- Independent contractors. During the Trump administration, the Board clarified the standards for classifying individuals as independent contractors rather than employees in its Velox Expressand SuperShuttle decisions. Together, those reversed the Board’s 2014 decision in FedEx Home Delivery that limited the significance of an individual’s entrepreneurial opportunity and the common-law agency test for classification purposes.
- Union recognition and obligations to negotiate. In a series of cases, the Trump Board issued various decisions that addressed employers’ obligations to recognize or bargain with a union in different circumstances, which provided employers greater flexibility in contrast to decisions issued during the Obama administration.
The list on Abruzzo’s memo goes on to fill ten pages that one can read for him or herself if so inclined, but suffice it to say that the new sheriff intends to undo as much of the Trump-era Board’s work as she can.