The Senate confirmed Jennifer Abruzzo as National Labor Relations Board General Counsel. Abruzzo will serve a four-year term, after passing a confirmation vote of 51-50, with VP Harris having to cast the deciding vote. Also securing Senate confirmation to the NLRB were David Prouty and Gwynne Wilcox. The Association of Builders and Contractors voiced the concerns of many in the business community:
“Throughout their careers, David Prouty and Gwynne Wilcox represented some of the largest union organizations in the country and their campaigns against employers and small businesses, raising serious concerns of conflicts of interest as members of the NLRB, as was evident during their Senate testimony,” said ABC Vice President of Legislative & Political Affairs Kristen Swearingen.
On August 12th, newly minted GC Abruzzo released a 10-page memo outlining her agenda for the newly pro-union NLRB, including:
- scrutiny of employee handbooks and policies
- employee use of employer email systems
- expansion of protected concerted activity
- confidentiality in workplace investigations and separation agreements
- expansion of Weingarten rights to non-union employees
- union access to employer property
- management rights clauses and employer flexibility to manage under labor agreements
- union dues following contract expiration
- NLRB jurisdiction over religious institutions
- deferral of ULP charges to arbitration
- injunctive relief against employers to remedy alleged violations
- permanent replacement of economic strikers
- independent contractors
The fate of “joint employer” status swings in the balance as the NLRB rescinded a Trump administration rule making it harder to establish joint employer status, while urging a federal appeals court to uphold the 2019 McDonald’s joint employer settlement.
The Third Circuit Court of Appeals upheld a 2019 NLRB decision to eliminate an Obama-era post-arbitral deferral standards rule and return to the decade’s old standard, which the court held was rational and consistent with the National Labor Relations Act. For history and ramifications of the return to the Olin standard (and some insight in preparing for this standard to swing yet again under the Democrat controlled Board), read the full article.
Democrats are getting creative in finding ways to promote unionization. The attacks on businesses embodied in the PRO Act (and the myriad rule-making actions sure to come) are the obvious components. In a shrewd twist, Senate Majority Leader Chuck Schumer disclosed a tax credit for union dues, adding a carrot to the stick, in the $3.5 trillion budget package.
In a flagrant example of the weakness of mail ballot procedures to handle a union election, a re-run election had to be ordered in a decertification election when the Board agent, on a Zoom call, read the result of each ballot immediately after extracting it from both the interior and exterior envelopes, instead of following the prescribed protocol, revealing the employee name associated with each vote.
