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NLRB Common Counsel Points Memo Updating Prosecutorial Priorities


On March 20, 2022, Nationwide Labor Relations Board (“NLRB” or the “Board”) Common Counsel Jennifer Abruzzo issued a memorandum to all Regional Administrators, Officers-in-Cost, and Resident Officers updating the circumstances they’re required to ship to the NLRB Division of Recommendation earlier than processing additional so as to “enable the Regional Recommendation Department to reexamine these areas and counsel the Common Counsel’s workplace on whether or not [a] change [in the law] is important to satisfy the Act’s mission.”

    Shortly after her affirmation by the Senate, Common Counsel Abruzzo issued Memorandum 21-04 in August 2021, discovered right here, outlining her priorities and itemizing three broad classes of circumstances that had been required to be submitted to the Division of Recommendation. We beforehand reported on the affect of GC 21-04 right here. Now, over a 12 months and a half later, Common Counsel has determined to revise that checklist discovering that “nearly all of points recognized in [the August 2021 memo] not require submission to the Division of Recommendation.”

    Particularly, in GC 23-04, Common Counsel Abruzzo recognized 46 points on which the Division of Recommendation has already offered steerage, both within the type of Vital Recommendation Memoranda or inserts for use in briefs to ALJs and/or the Board, thereby whittling the present checklist of necessary submissions to fifteen points:

    • Instances involving the applicability of the inherently concerted doctrine, set forth in Hoodview Merchandising Co., 359 NLRB 355 (2012);
    • Instances involving applicability of Shamrock Meals Co., 369 NLRB No. 5 (2020) (distinguishing earlier Board Instances and discovering the supply of considerably extra backpay than is owed in return for a waiver of reinstatement lawful);
    • Instances involving the applicability of United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (2019) (requiring that unions present non-member objectors with verification that the monetary info disclosed to them has been independently audited and that lobbying prices aren’t chargeable to such objectors);
    • Instances involving the applicability of Johnson Controls, Inc., 368 NLRB No. 20 (2019) (amongst different issues, overruling the “final in time” rule of Levitz Furnishings Co. of the Pacific, 333 NLRB 717 (2001));
    • Instances involving the applicability of Ridgewood Well being Care Heart, Inc., 367 NLRB No. 110 (2019) (discovering {that a} successor employer that discriminates in refusing to rent a sure variety of the predecessor’s workforce to keep away from a successorship bargaining obligation doesn’t essentially forfeit the suitable to set workers’ preliminary phrases);
    • Instances involving the applicability of Pittsburgh Put up-Gazette, 368 NLRB No. 41, slip op. at 3, n.5 (2019) (figuring out whether or not the post-contract establishment required will increase to employer fund contributions);
    • Instances involving the applicability of Brevard Achievement Heart, Inc., 342 NLRB 982 (2004) (declining to increase protection of the Nationwide Labor Relations Act (“NLRA”) to people with disabilities on grounds that these people, the place working in a rehabilitative setting, aren’t workers);
    • Instances involving the applicability of United States Postal Service, 371 NLRB No. 7 (2021) (refusing to discover a pre-disciplinary interview proper to info, together with the inquiries to be requested within the interview);
    • Instances involving the applicability of ABM Onsite Providers-West (2018) (deferring to a Nationwide Mediation Board advisory resolution through which NMB discovered Railway Labor Act jurisdiction beneath conventional six-factor provider management check and overruled NMB circumstances requiring provider management over personnel selections);
    • Instances involving a refusal to furnish info associated to a relocation or different resolution topic to Dubuque Packing (see former Chairman Liebman’s dissent in Embarq Corp., 356 NLRB No. 125 (2011) and OM-11-58);
    • Instances involving the applicability of Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007) (to find out whether or not this case’s permission of mid-term withdrawals of recognition occurring after the third 12 months of a contract of longer period ought to be overruled);
    • Instances involving the applicability of Wal-Mart Shops, 368 NLRB No. 24 (2019) (broadly defining an intermittent strike);
    • Instances involving the applicability of Service Electrical Co., 281 NLRB 633 (1986) (permitting an employer to unilaterally set phrases and circumstances of employment for replacements even the place these phrases are superior to those who had been paid to placing unit workers);
    • Instances involving the applicability of Ex-Cell-O Corp, 185 NLRB 107 (1970) (declining to offer a make entire compensatory treatment for failures to cut price); and
    • Instances involving the applicability of Cordua Eating places, Inc., 368 NLRB No. 43 (2019) (Board discovering, amongst different issues, that an employer doesn’t violate the Nationwide Labor Relations Act by promulgating a compulsory arbitration settlement in response to workers participating in collective motion).

    Along with the above checklist, the Common Counsel’s memo additionally states that the Areas will proceed to be required to submit circumstances involving digital surveillance and algorithmic administration that interferes with worker rights beneath Part 7 of the NLRA, a noteworthy growth we addressed in November of 2022, discovered right here.

    Key Takeaways

    Common Counsel Abruzzo touts vital progress in the direction of her aim of overturning lots of the key Trump-era Board selections. This memorandum is per the Common Counsel’s acknowledged targets of aggressively searching for to increase workers’ rights whereas severely limiting choices beforehand accessible to employers. Employers ought to seek the advice of expert labor counsel to debate the up to date steerage and the problems introduced by the Common Counsel’s memo.

    Developments on the NLRB are prone to proceed, we’ll monitor developments on this space and supply updates when related.

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