NLRB General Counsel Calls for Changes in Board Agenda

Allen Smith, J.D. By Allen Smith, J.D. August 19, 2021

​On Aug. 12, in her first memo as National Labor Relations Board (NLRB) general counsel, Jennifer Abruzzo presented an agenda full of recommended changes for the board. We've gathered articles on the news from SHRM Online and other trusted outlets.

Cases Involving 'Board Doctrinal Shifts'

Abruzzo listed 11 board case areas under the Trump board that she identified as doctrinal shifts away from previous board precedent. These include cases involving employer handbook rules, confidentiality provisions in separation agreements, defining the scope of protected concerted activity and union access. The memo also included additional subject areas Abruzzo would like NLRB staff to examine, such as cases involving Weingarten rights, employee status, mutual aid or protection, and the employer duty to recognize and bargain with unions. In the memo, Abruzzo expressed interest in examining cases involving the applicability of Weingarten principles in nonunionized settings.


Weingarten Rights

A unionized employee can request that a union representative be present during certain investigatory interviews. Employers and employees should know more about this entitlement, commonly referred to as "Weingarten rights," including what constitutes a request, when the rights apply and the role of union representatives at the interviews.

(SHRM Online)

Three Rulings Highlighted

Trump-era decisions that could be targeted by Abruzzo include a ruling involving Boeing Co. that helped companies defend workplace rules; a decision that said workers can be barred from using company e-mail to engage in organizing; and a ruling that barring union organizers from private property does not amount to unlawful discrimination.


Boeing Ruling

In a 2017 ruling, the Republican-led NLRB issued a decision that afforded employers more deference for their handbook policies. The board overruled a prior decision that placed limits on employer handbook policies that could be reasonably construed by workers to limit their right to engage in protected concerted activity. Under the old standard, many policies—such as confidentiality, civility and social media policies—that weren't meant to curb employees' rights under the National Labor Relations Act were still deemed unlawful even if an employer had a legitimate justification for the rule.

(SHRM Online)

Employers Can Limit Union Activities in Public Spaces on Their Property

In a 2019 ruling, the board decided that employers can ban nonemployee union representatives from organizing in public spaces on their property, so long as their policies are applied consistently to all nonemployees. The NLRB overturned board precedent, which previously held that nonemployee union representatives could access an employer's public spaces if they weren't disruptive.

(SHRM Online)

Democrats Soon Will Control NLRB

The NLRB soon will be controlled by Democrats, as the Senate has confirmed two union lawyers—Gwynne Wilcox and David Prouty—to fill one currently vacant seat and another that soon will be. Wilcox is now on the five-member board, and Democrat NLRB Chair Lauren McFerran remains on it as well. Prouty will replace William Emanuel when Emanuel's term ends Aug. 27. There will remain two Republican board members, John Ring and Marvin Kaplan. With these changes, the NLRB is expected to move toward the interests of organized labor.

(JD Supra)

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]



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