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NLRB General Counsel Issues 10(j) Warning Notice

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Posted 8/20/2021 - "NLRB General Counsel Issues 10(j) Warning Notice"
Sparing no time since she issued her Advice Memorandum last week, NLRB General Counsel Jennifer Abruzzo issued GC released Memorandum GC 21-05, outlining her position on the importance of 10(j) injunction proceedings.

Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek temporary injunctions in federal district courts to stop alleged unfair labor practices (including maintaining the “status quo”) while the case is being litigated before the NLRB. While 10(j) injunctions have long been understood to be a powerful tool at the General Counsel’s disposal, how often they are used has generally been dependent on the political party in power. While the General Counsel must seek authorization from the Board prior to proceeding to court to obtain a 10(j) injunction, Memorandum GC 21-05 certainly suggests the Board appears poised to utilize 10(j) injunctions more than the prior administration.

General Counsel Abruzzo’s memorandum makes clear, however, that she will not shy away from using 10(j) injunctions to “timely protect employees’ Section 7 rights.” General Counsel Abruzzo firmly believes 10(j) injunctions have led to positive results in ensuring the protection of employees’ rights. As such, she intends “to aggressively seek Section 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders.”

Employers should take notice of the General Counsel’s warning, and should not be surprised if more Board investigators mention 10(j) injunctions early in unfair labor practice investigations. Employers should also think critically about charges and allegations that may raise 10(j) concerns at the Board, and work swiftly to ensure their position does not warrant court involvement.

Posted 8/16/2021 - "NLRB General Counsel Releases Issue Priorities Memorandum"
On August 12, 2021 NLRB General Counsel Jennifer A. Abruzzo issued her “Mandatory Submissions to Advice” memorandum (Memorandum GC 21-04), outlining her agenda items and priority issues for NLRB Regional Directors, Officers-in-Charge, and Resident Officers. The memorandum offers a glimpse into a number of issues the new General Counsel believes need to be re-evaluated, largely because, as she indicated in the memo, the prior Board “overrul[ed] many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.” Given the current political climate, and the position of the General Counsel, employers can expect significant NLRB policy changes in the coming years.

The memo is divided into three sections. The first section Identifying “doctrinal shifts” of the past several years. The memorandum identifies 11 precedential topics she will be focusing on, likely to the detriment of employers, those being:

  • Employer Handbook rules
  • Confidentiality provisions/Separation agreements and instructions
  • What constitutes protected concerted activity
  • Wright Line/General Counsel’s burden
  • Remedial issues
  • Union access
  • Union dues
  • Employee status
  • Board jurisdiction over religious institutions
  • Employer duty to recognize and/or bargain
  • Deferral

The second section identifies seven additional areas and initiatives the General Counsel wants to carefully examine during her tenure, including: (1) Employee status, (2) Weingarten, (3) National Mediation Board vs. NLRB jurisdiction, (4) Employer duty to recognize and/or bargain, (5) Employees’ Section 7 right to strike and/or picket, (6) Remedies and compliance, and (7) Employer interference with employees’ Section 7 rights.

The third and final section identifies a litany of other casehandling matters the General Counsel will be focusing on, ranging from cases involving injunctions, partial lockouts, and the need to harmonize the NLRA with local, state and other federal statutes.

While the General Counsel’s memorandum is extensive, it only generally outlines topics that General Counsel, and presumably the Biden administration, will be focusing on over the next several years. It is not entirely clear how the General Counsel plans to change the matters identified. It is fair to assume, however, that the General Counsel will focus on changing the identified topics in such a way to further protect employees and their right to collectively bargain. At this time we don’t know precisely what changes will be made, but it is fair to assume the Board will seek to reimplement prior-democratic era changes will be made, but it is fair to assume the Board will seek to reimplement prior-democratic era interpretations of the issues identified. Unless and until a case is actually before the NLRB, how the current law will be changed is unknown.

Based on the topics covered in the General Counsel’s memorandum, employers approaching collective bargaining should think strategically about the current state of their management’s rights clauses, and other reserved rights as outlined in their CBA. The General Counsel may very well focus on specific rights and waivers outlined in the CBA. Employers should likely proceed with trying to obtain contract language that is as specific as possible in the near future.

Employers should also be thinking more critically about what constitutes protected concerted activity, looking closely at workplace rules that may be focused on limiting certain speech or behavior at work. This exercise should also not be limited to unionized employers as non-union employees have Weingarten rights, and a proactive Board will seek to ensure that standard is maintained, and potentially even expanded. Non-union employers need to be on guard for expansive labor policies that the new General Counsel could seek to enforce, likely attempting to distance the current Board from policies implemented and utilized during the Trump administration. 

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