All unionized and nonunionized private sector employers should prepare now for the anticipated legal changes contemplated in the National Labor Relations Board’s latest general counsel memorandum, GC 21-04. The Memorandum, released August 12, 2021, provides a detailed roadmap of the legal precedents and case-handling processes that new NLRB General Counsel Jennifer Abruzzo will advocate changing during her four-year term.

The National Labor Relations Board (NLRB) is the independent federal agency responsible for enforcing the nation’s federal labor laws, and it is bifurcated into two component parts. The General Counsel side of the NLRB, led by top litigator Abruzzo, sets federal labor law policy initiatives, investigates, and litigates alleged violations of federal labor law, and conducts elections to determine whether employees wish to be represented by a collective bargaining representative. The other side of the NLRB, commonly referred to as “the Board,” includes a five-member quasi-judicial body that reviews issues litigated by the General Counsel and renders decisions that establish Board law.

GC 21-04 outlines the newest NLRB policy initiatives under Abruzzo’s leadership, and directs the NLRB’s regional offices to submit cases to the NLRB’s Division of Advice so that Abruzzo can determine whether those cases should serve as vehicles to overturn existing Board law.

Specifically, GC 21-04 reveals Abruzzo’s intent to explore doctrinal shifts in the following key areas:

  1. Employer handbook rules under The Boeing Co., 365 NLRB No. 154 (2017). (The case that allowed employers to more easily impose workplace rules, such as confidentiality, non-disparagement, social media, media communication, civility, offensive language, and no-camera policies).
  2. Confidentiality provisions in separation agreements under Baylor University Medical Center, 369 NLRB No. 43 (2020). (The Baylor case lawfully permitted employers to include in separation agreements confidentiality clauses, non-disparagement clauses, and waivers prohibiting employee participation in third party claims against an employer in exchange for severance monies paid to the employee).
  3. What is considered protected conduct for unionized and nonunionized private sector employees under the National Labor Relations Act (the Act).
  4. The factors that distinguish a worker’s status as an employee vs. an independent contractor.
  5. The Board’s current position that certain religious educational institutions and certain employers related to the airline industry are not subject to and responsible for complying with the Act.
  6. An employer’s duty to recognize a union and other bargaining obligation issues.
  7. NLRB’s current requirement that discrimination and retaliation allegations subject to a Wright Line analysis must include evidence that a causal relationship, exists between an employee’s protected conduct, and an adverse action taken against the employee; a mere inference between the two is insufficient).
  8. Union rights to access an employer’s facility.
  9. An employer’s obligation to deduct and remit union dues.

Abruzzo’s extensive list of cases requiring reconsideration foreshadows continued volatility in Board law, with broad implications for unionized and nonunionized private sector employers of all industries. In particular, Abruzzo’s focus on revisiting the Board’s legal framework concerning handbook rules, and confidentiality provisions in separation agreements has the potential to cause all employers to reassess their confidentiality, non-disparagement, social media, media communication, civility, offensive language, and no-camera policies, as well as review their best practices when issuing separation agreements with confidentiality provisions to employees.

Under the National Labor Relations Act, employees are entitled to engage in “protected, concerted activity. Abruzzo’s attention to what constitutes “protected concerted activity” for unionized and nonunionized private sector employees under the Act reaffirms earlier messaging from Abruzzo’s predecessor, Acting General Counsel Peter Ohr. Ohr’s March 2021 General Counsel Memo, GC 21-03 outlined the General Counsel’s more expansive view of protected concerted activity, particularly as it relates to employee activity surrounding health and safety protests, and racial discrimination concerns raised within the workplace. As employee resistance and collective action concerning employer health and safety protocols persist, including over issues like mandatory vaccination policies, employers should take care to follow the developments in this area. Similarly, employers that experience workplace employee actions related to political and social justice issues like race discrimination and sexual harassment should follow developments in this area, especially if company policies relating to political and social justice issues have been adopted.

Abruzzo’s memorandum also presents cause for concern for private sector employers that currently have a bargaining obligation with a labor organization. Many of the cases Abruzzo cites for reconsideration relate to the bargaining obligation, and if changed, would severely restrict an employer’s ability to make any workplace changes not clearly permitted under the parties’ contract language without first bargaining with the employees’ bargaining representative. In a time where the effects of the COVID-19 pandemic continue to require constant adaptations to employer policies and procedures, employers with a current bargaining obligation will be required to constantly monitor the law for any changes in this area to ensure they remain in compliance with their statutory bargaining obligations.

Lastly, and most strikingly, General Counsel Abruzzo’s initiatives, as set forth in GC 21-04, seemingly pave the way to propel organizing into the 21st century. Abruzzo’s focus on revisiting what employer provided electronic mediums employees may lawfully use to engage in protected concerted activity, coupled with a plan to revisit the factors that distinguish a worker’s status as an employee versus an independent contractor, if adopted, creates an atmosphere ripe for increased organizing among employees generally, and gig economy workers in particular.

Abruzzo’s roadmap of NLRB legal priorities reflect bold change on the horizon at the NLRB. Employers with concerns about the impact of the GC’s initiatives on their business operations should contact their Akerman Attorney.