1. Democrats now hold the majority of seats on the National Labor Relations Board (NLRB). The new Democratic majority in the NLRB became official on Saturday, August 28, when President Joe Biden’s candidate David Prouty was sworn in as the fifth and final member, replacing leadership counsel and appointed Republican William Emanuel, whose the mandate ended the day before. Democrats now control three of the NLRB’s five seats and are expected to make decisions that will help unions win elections, ease restrictions on expressing support for work in the workplace, and tighten common employment standards , among a host of other potential changes.
  1. The NLRB’s Advocate General issued a memorandum outlining an ambitious set of policy goals. On August 12, NLRB’s new General Counsel (GC) Jennifer Abruzzo published Memorandum 21-04, giving an overview of the many political objectives it intends to pursue. The memo sets out an aggressive agenda that would review many decisions of the Trump-era NLRB and other NLRB rules and cases, including the test to determine employee status, limits on the activity of protected workers, and the extent of employers’ duty to negotiate with unions. The memo requires all regions of the NLRB to submit cases involving the listed topics to the Division of Advice. The previous GC, Peter Robb, issued a similar memorandum (GC Memo 18-02) at the start of his tenure, which resulted in many changes in case law by the Trump NLRB. Abruzzo’s tenure is expected to have a similar impact, given that the Democratic majority that now controls the NLRB is likely to be receptive to Abruzzo’s political goals. The note aims to achieve some of the objectives included in the Law on the Protection of the Right to Organize (PRO) (which, at present, seems unlikely to be adopted by the Senate) and many others. Showing that some policy changes are already underway, the GC office issued a memorandum (Memorandum 21-06) directing NLRB regions to review how they pursue remedies in cases of unfair labor practices.
  1. The NLRB has said it is open to exploring a new global remedy, and a new memo from the NLRB GC echoes this message. In The Voorhees Care and Rehabilitation Center, 371 NLRB No. 22 (Aug 25, 2021), the NLRB telegraphed its intention, in a future case, to consider expanding its arrears and reinstatement remedies to include all forms of compensatory damages. In GC Memorandum 21-06, published on September 8, Abruzzo said: “Like the Council, I too welcome the opportunity to review the appeals, and during my tenure as Advocate General I plan to issue periodic updates. up-to-date on remedies. Abruzzo has ordered NLRB regions, in cases involving illegal dismissals, to seek compensation for consequential damages, upfront payment and liquidated arrears as part of a combined complaint and compliance specification, if applicable. The CG went on to say that it would issue “another memorandum shortly which outlines the types of remedies regions should incorporate into settlement agreements.” It is an open question whether the NLRB has the authority under the National Labor Relations Act (NLRA) to expand remedies by case decision, or even by rule making. The NLRA itself only talks about “reimbursement” and reinstatement.
  1. Efforts are underway by Congressional Democrats to try to pass key elements of the PRO law through budget measures. Some lawmakers appear to be using Congress’ “budget reconciliation” process to pursue the goals of the PRO Act after the measure failed to progress independently in Congress. After the US Senate passed a $ 1,000 billion infrastructure bill in August, efforts began in the House of Representatives to make the Senate bill fit for House consideration. This process, called budget reconciliation, results in a vote by both chambers on “reconciled” budget measures. Significantly, the budget reconciliation process allows for the passage of budget measures by simple majority in the Senate and House, as opposed to other legislative measures (which require a qualified majority to pass to the final vote). The reconciliation process is still ongoing. Recent versions of the measures being adapted by the House Education and Labor Committee appear to include key elements of the PRO Act, including new civil penalties for employers who violate the NLRA and the personal liability of employees. directors and officers. The provisions would also make it an unfair labor practice for employers to take certain common measures, such as permanent replacement of strikers, foreclosure of employees and a requirement to attend “captive audience” speeches. It is ultimately up to the parliamentarian of the Senate to decide whether the measures attached to a budget bill are sufficiently budgetary to merit being included in a reconciliation bill. It remains to be seen how the parliamentarian will consider the inclusion of the provisions of the PRO law in the budget reconciliation measures.
  1. Advocate General Abruzzo Memorandum 21-05, “Using Section 10 (j) Procedures,” reaffirms the NLRB’s focus on seeking an injunction in federal court. The memorandum, issued on August 19, makes it clear that the GC “intends[s] aggressively seek relief under section 10 (j) when necessary to preserve the status quo and the effectiveness of the Commission’s final orders. The GoC described typical cases that may be suitable for an injunction:
  • Discharges that occur during an organizational campaign;
  • Violations during organizational campaigns in which a Gissel the order of negotiation is appropriate;
  • Post-certification violations, when parties should attempt to negotiate their first collective agreement;
  • Illegal withdrawals of the recognition of existing unions; and
  • Refusal to negotiate successors or refusal to hire.

The memo urges NLRB regions to continue to assess incoming cases to determine whether there is a need for an injunction, particularly “where unfair labor practices impact employee rights under the Act. Article 7 or on the negotiation process so that a final Council order arrives too late to effectively restore the legal status quo. Such cases are referred to the Injunction Litigation Branch, which decides whether to seek an injunction. In the past, the NLRB has only requested a 10 (j) remedy in a very small percentage of cases. For example, in 2012, the Board requested only 58 10 (j) remedial authorizations, which represents only 0.003% of all charges filed. It seems likely that GC Abruzzo will aggressively seek a 10 (j) remedy, or the threat of a possible 10 (j) proceeding, as leverage in pursuing a settlement.

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