On August 12, 2021, the newly appointed and narrowly confirmed General Counsel of the National Labor Relations Board, Jennifer Abruzzo, issued a Memorandum outlining the Board’s first steps in undoing every significant decision issued by the Trump Board. General Counsel Abruzzo is intent on turning back the clock to the tenure of her old boss, former General Counsel Richard (“Dick”) Griffin.
While it is not unusual for a new General Counsel to express some litigation priorities, Abruzzo has signaled that she will be seeking to overturn an extraordinary number of decisions. The GC Memorandum, entitled “Mandatory Submissions to Advice,” identifies specific legal precedent, initiatives needing careful examination, and case handling matters to be submitted to the Board’s Advice Branch. In the introductory paragraph, Abruzzo makes clear her disdain for the decisions of her predecessors, suggesting they disregarded “precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.”
What does this mean? If General Counsel Abruzzo gets her way, employers should prepare for a reversal of the Boeing case regarding employer rules and a return to the fly-specking scrutiny of handbooks by NLRB agents. Replacement workers should prepare to be victimized by racial epithets and other harassment from strikers. Employees will be able to render their activity “protected and concerted” by just claiming they have the support of coworkers. Most independent contractors will be found to be employees. Employers will have little to no property rights to exclude non-employee organizers. The NLRB will largely cease to “defer” cases to private labor arbitration. And, oddly, almost every change will be subject to bargaining, but parties will not be able to effectively waive any rights in a collective bargaining agreement.
As General Counsel Abruzzo mentions, no list is exhaustive….so this is just a brief description of some of the changes on the way. While General Counsel Abruzzo will certainly focus on overturning the last five years of Board precedent, she indicated an intention to turn the clock back even further. For instance, the Memorandum shows she plans to revisit granting Weingarten rights in non-union workplaces, reversing a decision that remained intact during the Obama Board era.
General Counsel Abruzzo’s tenure is just beginning, but it already feels like a long winter is in store for employers. We will continue to monitor these developments and keep everyone informed as the dominos begin to fall.
