THE LAW FIRM FOR EMPLOYERS
Compliance Matters TM
Sweeping Pro-Union, Pro-Employee Changes Underway at the NLRB
The National Labor Relations Board is making significant changes that will likely have a lasting effect on most private sector employers – both union and non-union. The Board is comprised of five members who are appointed by the President and confirmed by Senate. In August, majority control of the Board shifted to three attorneys who previously represented unions and employees. The other two members are attorneys that previously represented employers.

The General Counsel is the agency’s top prosecutor who has the final authority to decide whether to prosecute an employer or a union in pursuit of a Board determination as to whether certain conduct is a violation of the National Labor Relations Act. Jennifer Abruzzo, formerly a long-term agency attorney who most recently represented the Communications Workers of America, began serving as the NLRB General Counsel in July. She announced an ambitious agenda to revamp labor law in a series of memoranda released in August and September. These changes come as 68% of Americans approve of labor unions, the highest level of support Gallup has measured since 1965. Not surprisingly, President Biden said he expects his administration to be one of the most pro-union in history.


The proposed labor law changes that employers will face in the coming months and years run the gamut:

  • Expanded Remedies: The General Counsel plans to seek a broad panoply of remedies for employer violations of the NLRA, including but not limited to giving unions greater access to employees and the workplace, requiring reimbursement of union organizing costs and more orders for employers to bargain with unions where organizing campaigns fail because of serious employer violations, closer monitoring of bargaining with unions in certain circumstances, and greater use of federal court injunctions against employers. She also plans to seek expanded communication of notices of employer violations, including requiring posting of notices on social media, texting copies to all employees, and posting notices in the workplace for longer than the traditional 60-day period, as well as more agency monitoring of compliance.

  • Higher Employer Costs for Violations: When an employee is fired in violation of the NLRA, the Board traditionally orders a make-whole remedy that includes reinstatement, backpay, and benefits that the employee would have otherwise received, less any interim earnings from replacement employment. Abruzzo intends to seek Board orders requiring employers to also reimburse employees for consequential damages resulting from the employer’s unfair labor practices. This would include a variety of potential employee losses and costs, such as interest and late fees on credit cards, fees or penalties for early withdrawal of funds from a retirement account, loss of a home or vehicle due to an inability to make payments, damages to the employee’s credit rating, training to obtain or renew occupational licensing or certification, increased healthcare costs, moving expenses to obtain replacement employment, and attorneys’ fees for employees that successfully pursue an unfair labor practice charge.

  •  NLRB Settlements: In employer settlements of unfair labor practices, in addition to the various expanded remedies, the General Counsel will seek to include employer acknowledgements of a violation, rather than a non-admissions clause, and an employer obligation to issue a written apology.

  • Independent Contractor Misclassification as an Unfair Labor Practice: Another move that is sure to make waves in the age of the gig economy, is the General Counsel’s intent to seek a Board ruling that the misclassification of employees as independent contractors amounts to an unfair labor practice. This greatly increases the stakes for businesses that rely on independent contractors. A finding that employees were misclassified as independent contractors would likely give a union a built-in opportunity for two chances to win an organizing campaign.

  • Protected Activity: Abruzzo also intends to seek an expanded definition of protected concerted activity that might result in an employee’s statement about the workplace to be “inherently concerted,” and therefore “protected,” even if the employee was not actually speaking on behalf of others. She also plans to seek Board orders that would give employees greater leeway to speak out about various matters, such as brewing social issues, which may have only a tangential relationship to the workplace.

  • Employee Handbooks: The General Counsel has also announced she wants to reverse existing Board policies for evaluating whether an employee handbook policy rises to the level of an NLRA violation. Employers will once again see employee handbooks beings combed for seemingly innocuous provisions that might amount to an unfair labor practice. Even though employees may not have ever read the challenged policy, let alone altered their conduct, a finding that the policy is an unfair labor practice would force the employer to notify all employees of the violation and to reissue revised handbook language. If the policy existed when a union lost an NLRB election, it would give the union a built-in basis for a second election.

  • Use of Email and Other Employer Platforms: Abruzzo also desires to have the Board authorize employees to use employer email systems and other electronic platforms for union organizing and other protected activities.

  • Limits on Confidentiality: The General Counsel wants to limit the application of confidentiality provisions in employer-employee settlement agreements, arbitration agreements, and other workplace policies and communications. If this push is successful, it may become unlawful for an employer to place any limitation on current and former employee communications having a connection to wages, hours, or other terms and conditions of employment. Non-disclosure agreements that interfere with such a right would be unlawful and unenforceable.

  • Mandatory Union Recognition: Abruzzo has signaled an interest in reviving an NLRB doctrine the Board abandoned approximately 55 years ago. If she is successful, an employer would be prohibited from refusing to recognize and bargain with a union where the union presents evidence that a majority of employees have signed authorization cards, unless the employer is able to establish a good faith doubt as to majority status. Currently, an employer faced with such a claim from a union may simply refuse to recognize the union unless the union is certified following an NLRB-conducted secret-ballot election. Employers may soon be facing a difficult choice if a union claims that it has obtained majority support.

These are just some of the changes that the General Counsel will be pursuing. The rate and speed of acceptance by the newly comprised Board is difficult to predict. Board members must wait for a party in an appropriate case to appeal to the Board, normally after a trial and the decision of an NLRB administrative law judge. Once appealed, a panel of the Board may decide whether to establish new precedent. In rare circumstances, the Board may propose and adopt regulations. However, whether certain conduct amounts to an unfair labor practice, and what actions are necessary to effectuate an appropriate remedy, are determinations the Board normally makes on a case-by-case basis.

If you have any questions about these developments and what they might mean for your business, please call your contact at the firm, or visit us online at www.brgslaw.com.


Sincerely,
Matthew T. Wakefield
Olga G. Pena
Ballard Rosenberg Golper & Savitt, LLP 

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