On August 12, 2021, the NLRB’s new General Counsel, Jennifer Abruzzo, issued a memo (GC 21-04) signaling plans to reconsider more than 40 decisions of the Trump Board. The memo also asks for cases in a number of areas not addressed by the Trump Board to be sent to Advice for the purpose of considering whether new standards should be set. The memo is indicative of an aggressive agenda that will likely see the Board issue a number of pro-labor decisions and reverse the business-friendly rulings we saw in the prior administration.
The list of subjects the General Counsel has asked the Regions to submit to Advice is expansive. Topics include:
- The standard for determining whether a worker is an independent contractor or an employee;
- The standard for permissible workplace rules and policies set forth in The Boeing Co.;
- The definition of “protected concerted activity” under Section 7;
- The circumstances under which employees may use the employer’s email system;
- Whether an employer may require employees to keep workplace investigations confidential;
- The standard for asserting jurisdiction over religious institutions;
- The legality of confidentiality and non-disparagement clauses in separation agreements;
- The circumstances under which an employer may cease making dues deductions following contract expiration;
- The Board’s MV Transportation decision adopting a “contract coverage” standard instead of a “clear and unmistakable waiver” standard to determine if unilateral employer action is permitted; and
- The applicability of Weingarten rights to employees in non-union settings.
The General Counsel’s memo even indicates a willingness to permit union to organize through card checks instead of a secret ballot election. Specifically, the General Counsel plans to revisit an issue last addressed in the Board’s 1949 Joy Silk Mills decision and decide whether an employer must recognize and bargain with a union where the union presents evidence of card majority and the employer refuses to bargain.
The Board will shift from a Republican to Democrat majority in September when Member Emanuel’s term expires and he is replaced by David Prouty. Union lawyer Gwynn Wilcox joined the Board this month.