Regardless of whether one identifies as pro-labor, pro-management, or somewhere in between, most would agree that the National Labor Relations Board is a political animal. Board doctrine often shifts to reflect the philosophy and goals of the political party in power at the time.

Critics of the board accuse it of "flip-flopping." Others more graciously refer to this phenomenon as "policy oscillation."

Policy oscillation is in full swing at the board.

A Change of Leadership, A Change of Focus

As of fall 2021, Democrats assumed majority control over the five-person board. In addition, Jennifer Abruzzo, an attorney with a decidedly pro-labor background, was appointed as the board's general counsel.

The new general counsel has made clear that she intends to embark on an aggressive campaign to swing board doctrine to a pro-labor position.

On Aug. 12, 2021, the newly confirmed general counsel issued a memorandum highlighting several workplace issues that she believes the board should reexamine. The memorandum requires the board's regional directors to submit these issues to the "Advice Branch" to determine whether to prosecute cases that may otherwise have been in compliance with existing board precedent.

To be more blunt, the general counsel's memorandum is a virtual "hit list" identifying decisions from the prior (Trump) board that the new general counsel believes should be overturned.

The following are some of the more significant issues that the general counsel has targeted for review and possible reversal.

Facially-neutral Workplace Rules

Examples of these rules, which often are found in employee handbooks, are rules affecting workplace confidentiality, non-disparagement, social media use, employee communications with the media, employee civility, and no camera rules.

In 2004, the board issued its decision in Lutheran Heritage Village-Livonia,¹ in which it held that a facially-neutral rule in an employee handbook could be unlawful if employees would "reasonably construe the language to prohibit" the exercise of their section 7 rights.²

The application of Lutheran Heritage resulted in the board overturning many facially-neutral employer policies, such as the ones listed above. In December 2017, the Trump board engaged in its own policy oscillation by overturning Lutheran Heritage in favor of a new, more employer-friendly standard set forth in The Boeing Company.³ Under Boeing, the board adopted a test that balances the employer's legitimate business interests in maintaining the rule versus the impact that the rule would have on employee's section 7 rights.

In its recent decision in Stericycle, Inc.,⁴ the board invited public briefing on the issue of whether to overturn the standards set forth in Boeing. On March 7, 2022, the general counsel filed her brief on the issue, urging the board to overturn Boeing and to return to the more employee-friendly standard set forth in Lutheran Heritage. It is likely that the board will adopt the general counsel's position on this issue.

Employee versus Independent Contractor Status

This status distinction is important, because independent contractors are not covered by the National Labor Relations Act. In Super Shuttle DFW, Inc.,⁵ the Trump board adopted an independent contractor standard that enhanced the likelihood that independent contractor status would be found.

In its Dec. 27, 2021, decision in The Atlanta Opera, Inc.,⁶ the board invited briefing on the issue on whether Super Shuttle should be overturned, and whether the more employee-friendly standard that had been used in FedEx Home Delivery,⁷ should be revived.

What Constitutes Protected Concerted Activity

The Trump board issued several decisions that restricted the scope of what constitutes protected concerted activity that is covered under section 7. See, for example, two cases from 2019: Alstate Maintenance, LLC, narrowly construing what rises to the level of concerted activity under section 7; and Quicken Loans, Inc., narrowly construing a conversation between coworkers as not involving mutual aid or protection covered by section 7.⁸ The general counsel has targeted both of those decisions for reversal.

The Employer's Duty to Bargain

In MV Transportation,⁹ the Trump board adopted a "contract coverage" standard, under which a unionized employer is allowed to make unilateral changes to the terms and conditions of employment if the subject of the change arguably falls within the language of the collective bargaining agreement between the parties.

The MV Transportation standard gave employers greater latitude to make unilateral changes without bargaining with the union. The general counsel is seeking to overturn MV Transportation.

Expansive, Remedial Measures

In General Counsel Memorandum 21-06 (Sept. 8, 2021), the general counsel instructed the Regions to request from the board the "full panoply of remedies to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices."

These make whole remedies include such items as reinstatement, front pay, backpay, and consequential damages. The general counsel interpreted "consequential damages" broadly to include such items as:

• health care expenses an employee may incur as a result of unlawful termination;

• credit card late fees;

• loss of a home or a car; and

• compensation for emotional distress and injury to character, professional standing, or reputation.

The general counsel also would require offending employers to post remedial notices in newspapers and other forums, such as the employer's own social media websites. Lastly, the general counsel would compel employers to issue letters of apology to affected employees.

The broad scope of damages that are being sought by the general counsel, when considered as a whole, are unprecedented.

Settlement or Total Capitulation

Rather than face costly litigation, employers often elect to settle unfair labor practice charges that are brought by the board.

If the general counsel has her way, there may be little motivation for employers to do so. The general counsel has instructed the Regions to require that all settlements contain the following components:

• full backpay;

• consequential damages;

• reinstatement;

• posting of notices (including posting on the employer's own website);

• a prohibition on "non-admissions" clauses; and

• letters of apology.

The general counsel has made clear that the board will be seeking full capitulation, rather than compromise, when settling unfair labor practice charges.

Promotion of Voluntary Recognition

The general counsel's Aug. 12, 2021, memorandum also suggests that she may be urging the Regions to expand the use of voluntary recognition of a union's majority support without the need for a secret ballot election.

The general counsel may attempt to resurrect a decision from 1949, Joy Silk Mills, Inc.¹⁰ In that case, the board found that the employer has a duty to recognize and bargain with the union when presented with evidence of a card majority, unless the employer is able to show that a good faith doubt exists as to the integrity of the authorization cards.

The Joy Silk doctrine was abandoned by the board years ago, and the fact that the general counsel chose to mention it in her memorandum suggests that it may make a comeback.

Interagency Coordination

In a memorandum issued Feb. 10, 2022, the general counsel called for interagency cooperation between the NLRB, the Equal Employment Opportunity Commission, the Department of Labor, and Occupational Safety and Health Administration, among others, to ensure full compliance with all employment laws that may have been violated by a particular employer.

In a separate Memorandum of Understanding between the board and the Department of Labor Wage Hour Division, signed by the general counsel on Dec. 7, 2021, the board entered into a partnership with the Wage Hour division, in order to share information to prosecute offenders under both laws.

This certainly could be unnerving for some employers, and will likely impact the level of cooperation provided by an employer during an investigation by one or both of these agencies.

Conclusion: An Ambitious and Aggressive Campaign

There clearly is a new sheriff in town. General Counsel Abruzzo has made clear that she will be pursuing an ambitious and aggressive pro-labor campaign to expand the scope and protections of the National Labor Relations Act. The policy oscillation that is necessary for the general counsel to achieve her goals already has begun.

This article was originally published on the State Bar of Wisconsin's Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

² Recall that section 7 of the National Labor Relations Act gives employees the right to engage in protected concerted activity for their mutual aid and protection.

³The Boeing Company, 365 NLRB No. 154 (2017).

⁴Stericycle, Inc., 371 NLRB No. 48 (2022).

⁵Super Shuttle DFW, Inc., 367 NLRB No. 75 (2019).

⁶The Atlanta Opera, Inc., 371 NLRB No. 45 (2021).

⁷FedEx Home Delivery, 361 NLRB No. 610 (2014).

⁸Alstate Maintenance, LLC, 367 NLRB No. 68 (2019); Quicken Loans, Inc., 367 NLRB No. 112 (2019).

⁹MV Transportation, 368 NLRB No. 66 (2019).

¹⁰Joy Silk Mills, Inc., 85 NLRB No. 1263 (1949).