The NLRB General Counsel’s Office is not wasting any time making changes to national labor law policy. General Counsel Jennifer Abruzzo recently issued her third memorandum in just two months.
Abruzzo’s first memo, released in August, outlined NLRB’s enforcement priorities during her tenure. Abruzzo framed this work 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.”
The most recent memo directs field offices to seek settlement agreements that provide what she calls “complete relief” to charging parties and victims of unfair labor practices. The memo expands on another, released last week, that significantly expanded the types of damages Abruzzo’s directors are to pursue in designated situations.
Below are the most significant landmarks on Abruzzo’s “road map.”
The bottom line is you should expect more aggressive legal positions from your Regional Director, especially concerning damages and settlement terms.
1. Erasing Trump-era decisions
Abruzzo listed dozens of past decisions that she would like to see bent in favor of employees, if not completely overturned. Most of the decisions were issued during the Trump years and a handful were from the second Bush presidency. Others are more venerable, such as a decision from the Truman administration’s NLRB. No precedent seems out of bounds.
Abruzzo has categorized her priorities in eleven different policy areas. Based on these priorities, you can expect the NLRB to:
- View the legality of handbook provisions from the employee’s—not the employers’—point of view
- Heavily scrutinize confidentiality provisions like those often included in severance agreements
- Expand what constitutes “protected concerted activity” under the NLRA.
2. Issuing further enforcement guidance
Abruzzo’s list of other interests is expansive, and it seems that no body of law, no matter how well-established, is off-limits for examination. Abruzzo notes she may issue further enforcement guidance during her tenure. For now, Abruzzo expressed interest in the misclassification of independent contractors, Weingarten rights in non-union settings (generally allowing employees to have representation at investigatory interviews), the employers’ duty to recognize and/or bargain, to strike and/or picket, and employer interference with NLRA Section 8 rights.
3. NLRB housekeeping
The goal seems to be addressing matters that have often been escalated internally within the NLRB system for legal advice. Abruzzo listed sixteen “case-handling” matters, including the validity of partial lockouts, the need to harmonize the NLRA with local, state, or other federal statutes, complex subpoena issues, and the scope of Section 10(j) (“nip in the bud” cases).
4. Damages from unlawful discharge
Damages occupied much of Abruzzo’s second memo. In it, she instructed her deputies to pursue not only ordinary damages like back pay but also consequential damages when they bring unfair labor practice charges under the NLRA. Abruzzo listed examples like health care expenses an unlawfully discharged employee might incur as the result of lost insurance, or credit card, mortgage, or car loan late fees incurred as the result of lost income.
5. Damages from unlawful conduct during an organizing drive
Abruzzo ordered her Regional Directors to seek remedies in addition to front pay and liquidated back pay. This could include non-wage remedies like newspaper publications, notice postings, training for supervisors and non-supervisors, and even union access to employee contact lists and reimbursement for organizing and bargaining expenses.
6. Remedies for unlawful failures to bargain
Abruzzo’s directors will seek remedies for an unlawful failure to bargain, including the imposition of bargaining schedules, periodic progress reports to the NLRB, a 12-month post-certification “freeze” on challenging a union’s status, reinstatement of “unlawfully withdrawn” bargaining proposals, and engagement of a Federal Mediation and Conciliation Service (FMCS) mediator, to name only a few.
7. Driving a hard bargain
In her third memo, Abruzzo advised her Regional Directors seeking settlement agreements with employers to seek no less than 100% of the back pay and benefits owed, consequential damages (like those listed in items 4-6 above), and front pay if an employee waives reinstatement.
She also mandated the use of a heavy-handed default “cure” procedure if an employer defaults under a settlement agreement. If, after 14 days from a Regional Director’s notice of default, the default is uncured, a complaint and motion for summary judgment will follow.
By the terms of the settlement agreement, the employer will have agreed the allegations in the complaint will be deemed admitted. The only issue that will remain in litigation is whether the employer defaulted, and even that issue—employers will have agreed in writing—may be decided by the Board without a trial or any other proceeding. That’s the heavy-handed part.
Finally, if employers want to include a “non-admission” clause denying the substance of the allegations in a settlement agreement with the NLRB, they will have a fight in front of them. Abruzzo reminded Regions that such clauses are the exception. Instead, she advised Regions to “strongly consider” admission clauses for repeat violators, by which an employer would admit the allegations.
All employers should be aware of the changes in enforcement and priorities at the NLRB. The National Labor Relations Act applies to unionized and non-unionized workplaces alike.