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On March 20, 2022, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”), Jennifer Abruzzo, issued a memo to all Regional Directors, Charge Directors and Resident Directors, updating the cases they must submit to the NLRB Advisory Division before proceeding with processing, in order to “allow the Regional Advisory Division to re-examine these areas and advise the NLRB’s office General Council on whether (the) change (in the law) is necessary to fulfill the mission of the Law.”

    Shortly after its confirmation by the Senate, General Counsel Abruzzo issued Memorandum 21-04 in August 2021, found here, outlining its priorities and listing three broad categories of cases that should be submitted to the Counseling Division. Earlier, we reported here on the impact of GC 21-04. Now, more than a year and a half later, the General Counsel has decided to revise the list, noting that “most of the issues identified in the (August 2021 memo) no longer require submission to the Advisory Division.”

    Specifically, in GC 23-04, General Counsel Abruzzo identified 46 issues on which the Advisory Division has already provided guidance, either in the form of Meaningful Advice Memoranda or inserts to be used in summaries for ALJs and/or Board, thus reducing the current list of required submissions for 15 issues:

    • Cases involving the applicability of the inherently concerted doctrine, provided for in art. Hoodview Vending Co.359 NLRB 355 (2012);
    • Cases involving applicability of Shamrock Food Co.369 NLRB No. 5 (2020) (differentiating past Board cases and making it legal to offer significantly more late payment than is due in exchange for a waiver of reinstatement);
    • Cases involving the applicability of United Nurses and Allied Professionals (Kent Hospital)367 NLRB No. 94 (2019) (requiring unions to provide non-member objectors with verification that financial information disclosed to them has been independently audited and that lobbying costs are not charged to such objectors);
    • Cases involving the applicability of Johnson Controls, Inc.368 NLRB No. 20 (2019) (among other things, nullifying the “last in time” rule of Levitz Furniture Co. pacific333 NLRB 717 (2001));
    • Cases involving the applicability of Ridgewood Health Care Center, Inc.367 NLRB No. 110 (2019) (providing that a successor employer that discriminates by refusing to hire a certain number of the predecessor’s workforce to avoid a succession negotiation obligation does not necessarily forfeit the right to set initial employee terms);
    • Cases involving the applicability of Pittsburgh Post-Gazette, 368 NLRB No. 41, slip op. at 3, n.5 (2019) (determining whether the post-employment status quo required increases in employer fund contributions);
    • Cases involving the applicability of Brevard Achievement Center, Inc.342 NLRB 982 (2004) (refusing to extend coverage of the National Labor Relations Act (“NLRA”) to individuals with disabilities on the grounds that such individuals, when working in a rehabilitation setting, are not employees);
    • Cases involving the applicability of united states postal service371 NLRB No. 7 (2021) (refusing to find a pre-disciplinary interview right to information, including the questions to be asked at the interview);
    • Cases involving the applicability of ABM Onsite Services-West (2018).
    • Cases of refusal to provide information regarding relocation or other decision subject to Dubuque Packaging (see former President Liebman’s dissent in Embarq Corp., 356 NLRB No. 125 (2011) and OM-11-58);
    • Cases involving the applicability of Shaw’s Supermarkets, Inc.350 NLRB 585 (2007) (to determine whether permission for this case of mid-term recognition withdrawals occurring after the third year of a longer term contract should be rejected);
    • Cases involving the applicability of Wal-Mart stores368 NLRB No. 24 (2019) (broadly defining an intermittent strike);
    • Cases involving the applicability of Electric Services Co.281 NLRB 633 (1986) (allowing an employer to unilaterally set terms and conditions of employment for replacements, even when those terms are higher than those paid to employees in the striking unit);
    • Cases involving the applicability of Former Cell-O Corp, 185 NLRB 107 (1970) (refusing to provide a complete compensatory remedy for negotiation failures); It is
    • Cases involving the applicability of Cordua Restaurants, Inc.368 NLRB No. 43 (2019) (Board Finding, among other things, that an employer does not violate the National Labor Relations Act by enacting a binding arbitration agreement in response to employees involved in class actions).

    In addition to the above list, the General Counsel memo also states that regions will continue to be required to file cases involving electronic surveillance and algorithmic management that interfere with employees’ rights under Section 7 of the NLRA, a notable development we addressed in November 2022, found here.

    main conclusions

    General Counsel Abruzzo hails significant progress toward her goal of overturning many of the Trump-era Council’s key decisions. This memorandum is consistent with the General Counsel’s stated objectives to aggressively seek to expand employee rights while severely limiting the options previously available to employers. Employers should consult with the specialist labor council to discuss the updated guidance and issues presented by the General Counsel memorandum.

    Developments on the NLRB are likely to continue, we will monitor developments in this area and provide updates where relevant.