NLRB General Counsel Memorandum Reveals New Enforcement Strategy Affecting All Employers

By Jennifer R. Yee

In her first memorandum as General Counsel, Jennifer Abruzzo laid out a clear agenda for the new enforcement priorities of the National Labor Relations Board (“NLRB”). All unionized and nonunionized private sector employers face the changes that are contemplated in Memorandum GC 21-04, released August 12, 2021.¹ The Memorandum provides a detailed roadmap of the legal precedents and case-handling processes that Ms. Abruzzo advocates changing during her four-year term.

The NLRB is the agency responsible for enforcing federal labor laws. The NLRB’s General Counsel sets labor 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 Memorandum reveals Ms. Abruzzo’s intent to shift federal labor law in the following key areas:

1. Employer handbook rules under The Boeing Co., 365 NLRB No. 154 (2017) (which allowed employers to more easily impose workplace rules, such as confidentiality, non-disparagement, social media, media communication, civility, offensive language, and no-camera policies) and cases involving the applicability of AT&T Mobility, 370 NLRB No. 121 (2021) (overruling the third prong of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)).
2. Confidentiality provisions in separation agreements under Baylor University Medical Center, 369 NLRB No. 43 (2020) (which 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 paid to the employee) and reconsidering cases involving Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019) (assessing confidentiality rules applicable to workplace investigations) and California Commerce Club, 369 NLRB No. 106 (2020) (finding confidentiality provision of arbitration agreement lawful under the National Labor Relations Act (“Act”)).
3. What is considered protected concerted activity for unionized and nonunionized private sector employees under the Act.
4. The factors that distinguish a worker’s status as an employee versus an independent contractor.
5. The NLRB’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. The 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.
10. NLRB case handling procedures.

In addition to the litany of potential changes affecting unionized employers, Ms. Abruzzo’s focus on changing the legal framework concerning handbook rules and confidentiality provisions in separation agreements has the potential to cause all employers to reassess such policies and agreements.

Employers with concerns about the impact of the Memorandum’s initiatives on their business operations should consider contacting their legal counsel.