By: Jamie Rich, Michael Berkheimer, and Andrew Cohen
On March 20, 2023, National Labor Relations Board (NLRB or Board) General Counsel Jennifer Abruzzo issued GC Memo 23-04. The memorandum is a follow-up to her August 12, 2021, GC Memo 21-04 (“Mandatory Submissions to Advice”), in which General Counsel Abruzzo announced that she would pursue charges and seek to change the interpretation of the National Labor Relations Act (the Act) in several key areas. The recent memorandum narrows the issues that Regional Offices must submit to the NLRB’s Division of Advice for further consideration and interpretation of the law.
Overview of GC Memo 23-04
As General Counsel Abruzzo discussed at length during recent ABA midwinter meetings, there are still several areas of Board law she hopes to change and she is looking for the right case or cases to do so. She intends to pursue 15 issues remaining from the Mandatory Submissions to Advice list found in GC Memo 21-04, including cases involving:
- protected concerted activity (i.e., the applicability of the inherently concerted doctrine to subjects other than wages, such as diversity, equity, and inclusion-related subjects),
- strike-related precedent (i.e., intermittent strikes and employers’ ability to set terms and conditions of employment for strike replacements),
- union membership (i.e., anticipatory withdrawal requirements, ability to withdraw recognition after the third year of a contract of greater duration than three years, and requirements applicable to non-member Beck objectors),
- successorship (i.e., the ability to establish initial terms and conditions of employment by an employer who discriminates in the hiring of a predecessor’s workforce in order to avoid being treated as a Burns successor),
- bargaining obligations (i.e., the application of the status quo doctrine to post-contractual benefit increases),
- information requests (i.e., refusals to furnish information related to plant relocations and refusals to respond to information requests made prior to pre-disciplinary interviews),
- remedies (i.e., restricting offers of heightened backpay in exchange for waiving reinstatement and authorizing possible make whole remedies for failures to bargain),
- arbitration agreements (i.e., employers’ ability to promulgate mandatory arbitration agreements in response to protected activity), and
- extension of the Act’s coverage (i.e., extending coverage to individuals with disabilities in specific situations; revisiting the test for determining whether the NLRB will defer to National Mediation Board advisory opinions regarding Railway Labor Act jurisdiction).
The new memorandum also requires that Regional Offices submit to the Division of Advice cases involving algorithmic management or electronic surveillance.
Status of GC Memo 21-04 – Issues Gone But Not Forgotten
Most of the legal issues referenced in GC 21-04 are not found in GC 23-04, because the Regions already have cases pending, although their outcomes remain to be seen. Those types of matters no longer need to be submitted to the Division of Advice for interpretation, because the Regions may rely on outstanding guidance. In fact, GC Memo 23-04 states that the Division of Advice has issued guidance for dozens of issues found in GC Memo 21-04.
In some cases, the Division of Advice’s guidance has already resulted in the current Democrat-led NLRB overturning precedent. For example, the Board recently overruled precedent holding that employer restrictions on employees’ display of union insignia in the workplace are presumptively unlawful absent special circumstances.
Other cases have not yet reached the current Board, or have not yet been decided. There are 46 issues found in GC Memo 21-04 for which the Division of Advice has issued guidance, including arguments that protected concerted activity should include worker complaints about not being tipped and arguments that employees should be able to encourage their co-workers to vote for union representation while on-duty.
One of the more controversial items that remains pending is General Counsel Abruzzo’s position on captive audience speeches. On April 7, 2022, her office released GC Memo 22-04 , describing the General Counsel’s position that captive audience speeches are unlawful unless the employer holding them provides certain assurances to employees. Counsel for the General Counsel is actively pursuing this legal theory in Cemex, Case No 28-CA-230115, and its related cases. Last week, on March 16, 2023, the Associated Builders and Contractors of Michigan sued General Counsel Abruzzo for declaratory and injunctive relief. See Associated Builders and Contractors of Michigan v. Jennifer Abruzzo, in her official capacity as General Counsel of the National Labor Relations Board, Case No. 1:23-cv-00277-RJJ-RSK (W.D. Mich. March 16, 2023). The lawsuit argues that General Counsel Abruzzo has “embarked on a personal campaign to transform federal labor law.” It further argues that GC Memo 22-04 wrongfully targets extant law on captive audience speeches and coerces employer speech by limiting the freedom of expression guaranteed by the First Amendment and Section 8(c) of the Act. The lawsuit takes issue with the memorandum-writing process itself and seeks declaratory relief enjoining GC Memo 22-04.
What This Means for Employers
General Counsel Abruzzo released two new memoranda this week, including GC Memo 23-04, only a few days after the Associated Builders and Contractors of Michigan filed its lawsuit against her. This indicates that the General Counsel remains undeterred and will continue to pursue her aggressive labor agenda, particularly regarding the 15 legal issues found in GC Memo 23-04. Time will tell whether the General Counsel’s various initiatives will survive challenge. In the meantime, employers with cases that may involve legal issues found in 21-04 or 23-04 should be wary. We will continue to provide updates here as these matters (and more!) develop.