Even a passing glance at the Press Releases from the National Labor Relations Board (NLRB) in recent months will immediately suggest the fact that federal labor law is, step-by-step, changing – not because the National Labor Relations Act itself has changed, but because the personnel in charge of the Board have changed how they are interpreting that Act:


Release Date

 Title
12/16/2022
Board Modifies Standard Governing Off-Duty Workplace Access for Employees
12/15/2022
NLRB Protects Workers from Employer Coercion During Investigation of Unfair Labor Practice Complaints
12/14/2022
Board Modifies Framework for Appropriate Bargaining Unit Standard
12/13/2022
Board Rules Remedies Must Compensate Employees for All Direct Forseeable Financial Harms
11/03/2022
NLRB Issues Notice of Proposed Rulemaking on Fair Choice and Employee Voice
10/31/2022
NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices
10/20/2022
NLRB General Counsel Issues Memo on New 10(j) Injunction Casehandling Instructions to Increase Voluntary Settlements and Streamline Processes
10/03/2022
NLRB Rules Employers May Not Unilaterally Stop Union Dues Checkoff When Labor Contracts End
09/06/2022
NLRB Issues Notice of Proposed Rulemaking on Joint-Employer Standard
08/29/2022
Board Rules Workplace Policies Limiting Wearing Union Insignia, including Union Apparel, are Unlawful Absent Special Circumstances


While all these actions have an impact on union-organized employers, many of them can spill over to affect non-unionized employers as well without them even being aware.

What is this NLRB anyway? And why does a change in Presidents mean that labor law is changed as a result?

Specifics about the NLRB's makeup

The National Labor Relations Board (NLRB) is an independent federal agency created in 1935, vested with the power to safeguard employees' rights to organize, engage with one another to seek better working conditions, choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or refrain from doing so. The NLRB also oversees claims of unfair labor practices committed by private sector employers and unions, as well as conducts secret-ballot elections regarding union representation. Because this system is premised on the rights of employees to act in a collective manner, the legal protections can extend to nonunion situations in which employees argue that they are acting in a collective manner to address some issue, even if no union is in place.

The Board itself has five Members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one Member expiring each year. As you may have guessed, the President will typically appoint someone from his own party, so that, as individuals are replaced, the controlling majority on the Board shifts to his party (if it wasn't already). A democratic majority came about in September of 2021; and things have been changing ever since. [To be sure, this is nothing new – some of the "doctrines" that are in play have changed back-and-forth multiple times over the course of years, with each new Administration – making it difficult for labor lawyers to be certain of the outcome for some issues from one case to another.]

In addition, the NLRB has a "General Counsel," in charge of investigating cases and ultimately deciding which ones to prosecute. The General Counsel is also appointed by the President to a 4-year term. President Biden exercised his authority to remove the previous General Counsel1; and, on July 22, 2021, Jennifer A. Abruzzo began serving as General Counsel for the NLRB. Having the authority to decide which cases are prosecuted sets the tone and helps shape the direction of how federal labor law develops.

General Counsel Openly Anticipated Changes She Intended to Work For

Before the Board's majority had been changed, the new General Counsel publicly announced pathways she intended to consider for reexamination by the Board. In a 10-page memorandum issued August 12, 2021 (21-04), the General Counsel explained that, in the last several years the Board had made "a wide array of doctrinal shifts," which had overruled standing rules from years gone by – significantly, she described those overruled decisions as "legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers." Translation: things were set out of balance under the last administration and are now ripe for reassessment. She went on to state that there is another list of decisions that have been standing rules for many years, but which "should be carefully considered to determine whether current law ensures that employees have the right to exercise their fundamental Section 7 rights both fully and freely." In other words, she wanted to "carefully examine" many ground rules which have been in place for some time under both political parties.

She followed that introduction with an extensive list of issues that she has in mind for reevaluation at the federal level. Some of them are more technical in nature; but many of them involve reconsideration of some basic points of law – in some cases, the issues involve rights of nonunion employees which were expanded pre-Trump, and then restricted under Trump. Here are some of the key points of law, from among her long iteration, that she intended to bring up for reevaluation and, potentially, for changes under the new Board majority:

  1. Employee handbook work rules – in a broad array of issues, the Board had been challenging widely used language because it had the potential for infringing on an individual employee's ability to exercise his or her rights to act in concert with other employees under federal law (for example, workplace confidentiality rules that might cause an employee to believe he/she could not share "confidential" information with a co-employee). The Trump Board had given a more employer-friendly spin to how these cases would be analyzed.
  2. Separation agreements with confidentiality or non-disparagement clauses – again, the Board had moved to protect the rights of employees under federal law to share their views of working conditions; and the Trump Board had pulled back on that in favor of management.
  3. Confidentiality requirements when conducting workplace investigations – typically, management might desire/demand confidentiality among employees while an investigation is underway; but again, that risks limiting the employees' rights to share information for their collective good. Again, the Trump Board had leaned in favor of management in their approach to these cases.
  4. Union access to employer e-mail – the Trump Board had come down in favor of management's right to refuse.
  5. Union access to privately-owned property where the union's issue is with a party using the property.
  6. An employer's right to discontinue collecting union dues once a contract expires.
  7. The extent to which "management rights" allow an employer to change work rules without a union's further consent – the Trump Board had set a standard which makes it easier for an employer to allow management to proceed without further consultation with the union.
  8. An employee's right to have another employee present during management predisciplinary interviews – a right long recognized for union employees but changed repeatedly over the years for non-union workers.

A month later, the General Counsel announced, in Memorandum 21-06, that she intended to urge broader relief in favor of employees in future cases before the Board. She argued that, when an employee has been terminated in violation of the federal labor law, the relief should be adjusted to fit the circumstances so that the full economic loss felt by the employee is remedied (for example, if an individual loses a car after being terminated, due to not making the car payments, that should be included as part of the loss being remedied).

Last February, the General Counsel announced (Memorandum 22-02) that, at the first sign an employer is behaving badly in connection with a union organizing drive, the government should consider going to court for an injunction, to assure that the employer is restrained by court order before things have gone too far.

And, last April, in Memorandum 22-04, the General Counsel announced her position that, in union organizing campaigns, employers should not be permitted to compel employees to attend mandatory meetings at which they are told management's arguments for voting against a union. While employers have First Amendment rights to express their opinions to employees, and the Board, for many years, has allowed employers to compel attendance at such meetings, the General Counsel urges that this is not fair to unions and that she intends to ask the Board to reconsider this policy.

Many of These Hoped-for Changes Are Now Being Implemented By the Board

Here are some of the changes which the new majority has approved, as highlighted by the Board's press releases:

Release Date Title Summary
12/16/2022 Board Modifies Standard Governing Off-Duty Workplace Access for Employees of Contractors

Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians, Case 16–CA–193636

Arts Center leased its space to the San Antonio Symphony, as well as Ballet San Antonio and Opera San Antonio. Symphony musicians wanted to distribute leaflets onsite, complaining that the Ballet was not using live musicians for their program – the Arts Center compelled them to leave. The Board held that the Arts Center did not have that right - a property owner may only exclude the employees of its contractors from engaging in protected activity on the worksite if such activity would significantly interfere with the use of the property, or where exclusion is justified by another legitimate business reason. "For contractor employees, the right to exercise their Section 7 rights at their workplace – where they interact with their coworkers and are most impacted by their employer's decisions—is critical to making the protections of the Act a reality."
12/15/2022 NLRB Protects Employers Coercion During Investigation of Unfair Labor Practice Complaints

Sunbelt Rentals, Inc. and International Union of Operating Engineers, Local 139, AFL–CIO, Cases 18–CA–236643, 18–CA–238989, and 18–CA– 247528

When an unfair labor practice charge has been made against an employer, management will typically want to interview its employees to assess who may be witnesses who could assist management in presenting its defense. The Board majority held that, although employers may do so, they must strictly comply with this standard: "The employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees."
12/14/2022 Board Modifies Framework for Appropriate Bargaining Unit Standard

American Steel Construction, Inc., and Local 25, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers (Ironworkers), AFL–CIO, Petitioner, Case 07–RC– 269162

When a group of employees petition to have an election as to whether a union should be authorized, those employees have the first opportunity of stating which jobs should be included within the unionized group – definition of which may have implications for the likelihood of the vote being for or against the union. Management will often respond that the petitioners excluded workers who should have been included in the proposed union group. The majority stated the ground rules going forward: in order for such a unit to be appropriate, the employees in the petitioned-for unit must be readily identifiable as a group and share a "community of interest; but, when management contends that the unit is nevertheless inappropriate because it excludes additional employees who are not sufficiently distinct from the petitioned-for employees, management must show that the excluded employees share an "overwhelming community of interest" in order to mandate inclusion – In other words, Management will typically have a very difficult burden of proof in order to gain approval for a unit broader than what is originally proposed by the employees.
12/13/2022 Board Rules Remedies Must Compensate Employees for All Direct or Foreseeable Financial Harms

Thryv, Inc. and International Brotherhood of Electrical Workers, Local 1269, Cases 20–CA–250250 and 20–CA–251105

The Board held that the employer did not properly conduct negotiations with the union prior to implementing layoffs – hence, the employees laid off were entitled to be made whole. In assessing what that entails, the majority stated: making employees whole should include, at least, compensating them for direct or foreseeable pecuniary harms resulting from the respondent's unfair labor practice. For example, the Board noted that employees may be forced to incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs simply in order to make ends meet. Those should all be considered now in deciding what "penalty" to assess against an employer.
10/03/2022 NLRB Employers May Not Unilaterally Stop Union Dues Checkoff When Labor Contracts End

Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center and Local Joint Executive Board of Las Vegas, Case 28–CA–213783

Addressing an issue that has repeatedly changed in the past, the Board majority held that an employer, following contract expiration, must continue to honor a dues-checkoff arrangement established in that contract until either the parties have reached a successor collective-bargaining agreement or a valid overall bargaining impasse permits unilateral action by the employer.
09/06/2022 NLRB Issues Notice of Proposed Rulemaking on Joint Employer Standard

NATIONAL LABOR RELATIONS BOARD, 29 CFR Part 103, RIN 3142–AA21, Standard for Determining Joint-Employer Status, Vol. 87, No. 172 /Wednesday, September 7, 2022 / Proposed Rules 54641

Under the proposed rule, two or more employers would be considered joint employers if they "share or codetermine those matters governing employees' essential terms and conditions of employment," such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. The Board proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status. Part of the proposal includes: To Define ''Share or Codetermine Those Matters Governing Employees' Essential Terms and Conditions of Employment'' to Mean for an Employer To Possess the Authority To Control (Whether Directly, Indirectly, or Both), or To Exercise the Power To Control (Whether Directly, Indirectly, or Both), One or More of the Employees' Essential Terms and Conditions of Employment.

This approach significantly expands the number of situations in which an employer can find itself deemed a "joint employer," in spite a rule to the contrary the Board adopted two years previously.
08/29/2022 Board Rules Workplace Policies Limiting Wearing Union Insignia, Including Union Apparel, are Unlawful Absent Special Circumstances

Tesla, Inc. and Michael Sanchez and Jonathan Galescu and Richard Ortiz and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL–CIO, Cases 32–CA–197020, 32–CA–197058, 32–CA–197091, 32–CA–197197, 32–CA–200530, 32–CA–208614, 32–CA–210879, and 32–CA–220777

The Board majority concluded that employer attempts to impose any restriction on the display of union insignia, including by wearing union apparel, are presumptively unlawful, absent special circumstances that justify such a restriction, changing the standard set in 2019. In that case, it was unlawful for Tesla to maintain a policy requiring employees to wear a plain black t-shirt or one imprinted with the employer's logo, thus prohibiting employees from substituting a shirt bearing union insignia.


Additional matters already pending at the Board and awaiting further action, include:

  • Whether the Board will change the standards for employee handbook workrules which appear to be neutral on their face, Stericyle, Inc. and Teamsters Local 628, Cases 04–CA–137660, 04–CA–145466, 04–CA–158277, and 04–CA–160621, (January 6, 2022), NOTICE AND INVITATION TO FILE BRIEFS.
  • Whether statements management typically make to employees during a union-organization drive, and previously held permissible, should now be considered improper. See, Amazon.com Services LLC and Dana Joan Miller, Region 29, Case No. 29-CA-280153, General Counsel's Post-Hearing Brief, in which the Government argues that Amazon coerced workers against organizing in a "barrage" of so-called captive audience meetings, during which the company threatened that workers would "lose the right to speak for" themselves if they unionized.

Footnote

1. "The President's power to remove is essential to the performance of his Article II responsibilities and control over the Executive Branch. Because we hold that the NLRA does not provide tenure protections to the General Counsel of the Board, President Biden lawfully removed former-General Counsel Robb without cause." Exela Enterprise Solutions, Incorporated v. National Labor Relations Board, 32 F.4th 436, 445 (5th Cir. 2022).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.