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NLRB Normal Counsel Points Memo Updating Prosecutorial Priorities

On March 20, 2022, Nationwide Labor Relations Board (“NLRB” or the “Board”) Normal Counsel Jennifer Abruzzo issued a memorandum to all Regional Administrators, Officers-in-Cost, and Resident Officers updating the instances they’re required to ship to the NLRB Division of Recommendation earlier than processing additional in an effort to “enable the Regional Recommendation Department to reexamine these areas and counsel the Normal 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, Normal Counsel Abruzzo issued Memorandum 21-04 in August 2021, discovered right here, outlining her priorities and itemizing three broad classes of instances that have been required to be submitted to the Division of Recommendation. We beforehand reported on the influence of GC 21-04 right here. Now, over a 12 months and a half later, Normal Counsel has determined to revise that checklist discovering that “nearly all of points recognized in [the August 2021 memo] now not require submission to the Division of Recommendation.”

    Particularly, in GC 23-04, Normal Counsel Abruzzo recognized 46 points on which the Division of Recommendation has already supplied 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 obligatory submissions to fifteen points:

    • Circumstances involving the applicability of the inherently concerted doctrine, set forth in Hoodview Merchandising Co., 359 NLRB 355 (2012);
    • Circumstances involving applicability of Shamrock Meals Co., 369 NLRB No. 5 (2020) (distinguishing earlier Board Circumstances and discovering the supply of considerably extra backpay than is owed in return for a waiver of reinstatement lawful);
    • Circumstances 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);
    • Circumstances 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));
    • Circumstances 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 appropriate to set workers’ preliminary phrases);
    • Circumstances 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 established order required will increase to employer fund contributions);
    • Circumstances 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);
    • Circumstances 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);
    • Circumstances involving the applicability of ABM Onsite Providers-West (2018) (deferring to a Nationwide Mediation Board advisory resolution wherein NMB discovered Railway Labor Act jurisdiction below conventional six-factor service management take a look at and overruled NMB instances requiring service management over personnel choices);
    • Circumstances 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);
    • Circumstances 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 length must be overruled);
    • Circumstances involving the applicability of Wal-Mart Shops, 368 NLRB No. 24 (2019) (broadly defining an intermittent strike);
    • Circumstances 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 hanging unit workers);
    • Circumstances involving the applicability of Ex-Cell-O Corp, 185 NLRB 107 (1970) (declining to supply a make entire compensatory treatment for failures to discount); and
    • Circumstances 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 Normal Counsel’s memo additionally states that the Areas will proceed to be required to submit instances involving digital surveillance and algorithmic administration that interferes with worker rights below Part 7 of the NLRA, a noteworthy growth we addressed in November of 2022, discovered right here.

    Key Takeaways

    Normal Counsel Abruzzo touts important progress in direction of her objective of overturning lots of the key Trump-era Board choices. This memorandum is in step with the Normal Counsel’s said targets of aggressively searching for to broaden 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 offered by the Normal Counsel’s memo.

    Developments on the NLRB are more likely to proceed, we are going to monitor developments on this space and supply updates when related.


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