The General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or “Board”), Jennifer Abruzzo, has opened the vault and released previously unseen Advice Memoranda from her Obama-era predecessor General Counsel Richard Griffin, in her bid to continue to upend long-standing Board law. Abruzzo, who was Deputy General Counsel under Griffin, and who now heads the Office of the General Counsel, has released a slew of historic Advice Memoranda that shed light on her legal theory to limit employer’s free speech rights and their ability to communicate with employees about the real-world consequences of unionization on the workplace and the employer-employee relationship.Continue Reading NLRB General Counsel Seeks to Further Restrict Employer Remarks on How Unionization Impacts Employer-Employee Relations
Non-Clarified – The NLRB GC’s McLaren Macomb Memo Provides Murky and Ominous Guidance on Board’s Prohibitions on Non-Disparagement and Non-Disclosure Provisions
Approximately a month after the Board issued McLaren Macomb, 372 NLRB No. 58, which left employers scrambling to decipher its unclear impact on both unionized and non-unionized workplaces, Jennifer Abruzzo, the General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or “Board”) released guidance outlining her views on the decision’s implications and meaning in Memorandum GC 23-05 on March 22, 2023. The GC’s Memo contains an FAQ in response to inquiries the NLRB has received about the McLaren Macomb decision and outlines Abruzzo’s plans for enforcement of the decision.Continue Reading Non-Clarified – The NLRB GC’s <em>McLaren Macomb</em> Memo Provides Murky and Ominous Guidance on Board’s Prohibitions on Non-Disparagement and Non-Disclosure Provisions
Non-Disparagement, Non-Disclosure, Non-Allowed: The NLRB Finds Unlawful Confidentiality and Non-Disparagement Provisions in Severance Agreements
On February 21, 2023, the National Labor Relations Board (“NLRB” or “Board”) continued its aggressive application of the National Labor Relations Act (“Act” or “NLRA”) to workplaces without union representation and lessened the value of severance agreements for all employers by finding it unlawful for an employer to merely proffer a severance agreement that includes broad non-disparagement and confidentiality provisions to an employee. In McLaren Macomb, the Board held that a severance agreement that contains a confidentiality clause and a non-disparagement clause was unlawful because, in the Board’s view, these provisions impermissibly infringe on employees’ rights under the Act. Specifically, the Board found that these two provisions limit employees’ ability to discuss their wages, hours, and working conditions (which could include disparaging remarks) with other employees, prevent employees from assisting other employees seeking assistance, and hinder employees themselves from seeking assistance from the NLRB, unions, and other outside organizations.Continue Reading Non-Disparagement, Non-Disclosure, Non-Allowed: The NLRB Finds Unlawful Confidentiality and Non-Disparagement Provisions in Severance Agreements
D.C. Court of Appeals Scraps Substantive Changes from NLRB’s 2019 Final Rule on Election Procedures but Upholds Procedural Changes
On January 17, 2023, the U.S. Court of Appeals for the D.C. Circuit partially reversed and partially upheld a District Court decision that enjoined five rules promulgated by the National Labor Relations Board (“NLRB” or “Board”) in 2019 by the Trump-era Board (“2019 Rule”) to modify the Board’s representation election procedures. The 2019 Rule attempted to ease some of the “quickie election” rules established in 2014 by the Obama-era Board (“2014 Rule”). For a further discussion of the 2019 Rule, see “NLRB Issues Proposed Rule to Scale Back 2014 Expedited Election Rules.”
The D.C. Circuit held that because the Trump-era Board did not seek public notice and comment as required under the Administrative Procedure Act (“APA”) when issuing the 2019 Rule, “substantive” rule changes could not take effect, but “procedural” rule changes were valid under the procedural exception to the APA’s requirement for notice and comment.Continue Reading D.C. Court of Appeals Scraps Substantive Changes from NLRB’s 2019 Final Rule on Election Procedures but Upholds Procedural Changes
NLRB General Counsel Seeks to Restrict Employers’ Right to Permanently Replace Strikers
The General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or “Board”) is urging the Board to upend nearly 60 years of precedent and adopt a new legal standard that significantly limits employers’ ability to hire permanent replacements for striking employees. Under current law, employers have a general right to permanently replace workers who go on strike to obtain economic concessions from their employer, so long as an employer does not hire the replacements for an “independent unlawful purpose.” In an Advice Memorandum released on December 30, 2022, the GC confirmed her intention to push for the Board to impose a more restrictive standard that would require employers to show specific business reasons justifying the decision to replace strikers.Continue Reading NLRB General Counsel Seeks to Restrict Employers’ Right to Permanently Replace Strikers
NY Warehouse Workers Protection Act Requires Employer Disclosure on Mandated Work Speed and Quotas and Offers Protection for Employees
On December 21, 2022, NY Governor Kathy Hochul signed into law the Warehouse Worker Protection Act (“the Act’), which will be effective February 19, 2023. As noted in Governor Hochul’s press release announcing the Act, a major driving force behind the legislation was organized labor, including the Teamsters and the Retail, Wholesale and Department Store Union.
Continue Reading NY Warehouse Workers Protection Act Requires Employer Disclosure on Mandated Work Speed and Quotas and Offers Protection for Employees
NLRB Opens the Door for Contract Workers to Engage in Off-Duty Section 7 Activities Wherever They Work
On December 16, 2022, the National Labor Relations Board (”Board”) issued its decision in Bexar County II, which restricts the right of property owners to deny off-duty contract workers access to the property for the purpose of engaging in activities protected under Section 7 of the National Labor Relations Act (“Act”). In line with the current Board’s efforts to undo Trump-era decisions and reinterpret the Act to dramatically expand employees’ Section 7 rights and weaken property owners’ rights to control their property, the Board overturned its own precedent on contract workers’ off-duty access and reinstated its standard first established in the 2011 decision in New York New York Hotel & Casino . The Board’s decision in Bexar County II makes clear that it prioritizes contract workers’ access to a third-party’s property for Section 7 activities over the property owner’s own interests in their property. 
Continue Reading NLRB Opens the Door for Contract Workers to Engage in Off-Duty Section 7 Activities Wherever They Work
The “Community of Interest” Saga Continues – the Return of Micro-Bargaining Units
On December 14, 2022, the National Labor Relations Board (“Board”) issued a decision in American Steel Construction, Inc., reinstating its “overwhelming community of interest” Specialty Healthcare  test that gave rise to micro-bargaining units, which are smaller bargaining units that scored unions numerous victories during the Obama administration. In so doing, the Board overruled PCC Structurals  and The Boeing Co.,  both of which restored and refined the traditional “community of interest” standard used to evaluate challenges to a petitioned-for bargaining unit on the basis it excluded necessary employees.
Continue Reading The “Community of Interest” Saga Continues – the Return of Micro-Bargaining Units
NLRB Dramatically Increases Liability for Unfair Labor Practices with Far-Reaching “Consequential Damages”
On December 13, 2022, the National Labor Relations Board (“Board” or “NLRB”) issued a decision that greatly broadens the remedies available for violations of the National Labor Relations Act (“Act”). Prior to this decision, the Board’s “make whole” remedies for more than 80 years have generally included only backpay, reasonable search-for-work expenses, and interim employment expenses.
Continue Reading NLRB Dramatically Increases Liability for Unfair Labor Practices with Far-Reaching “Consequential Damages”
NLRB General Counsel Proposes Lower Standard for Requiring Employers to Provide Financial Information
In an Advice Memorandum dated April 20, 2022 and released on November 30, 2022, the Division of Advice within the National Labor Relations Board’s (“NLRB” or “Board”) Office of the General Counsel urged the Board to overturn existing Board law to significantly lower the standard for when an employer must furnish the union with its general financial information. This latest push to bolster unions during bargaining follows the NLRB’s General Counsel Jennifer Abruzzo’s (“GC”) issuance of Memorandum GC 21-04 regarding Mandatory Submissions to Advice on August 12, 2021, wherein she signaled her intent to change this standard.
Continue Reading NLRB General Counsel Proposes Lower Standard for Requiring Employers to Provide Financial Information