Pro-union movement at the DOL is full-steam ahead, as NLRB General Counsel Jennifer Abruzzo continues to get her ducks in a line, targeting more than 40 Trump-era decisions. Although she can’t take action until the appropriate cases are presented to the board, litigation is already underway in cases involving:
Another factor that may slow her down is NLRB Chair Lauren McFerran’s commitment to invite public opinion on major cases.
Abruzzo released a memo on February 1st encouraging regional staff to seek 10(j) injunctions earlier in union organizing campaigns, ostensibly to prevent companies from firing pro-union employees. Abruzzo claimed the injunctions were one of the most important tools her office has to “protect worker rights.”
Abruzzo also spoke out after the recently passed Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, claiming the Act did not go far enough. She apparently would like to see an end to any forced arbitration that would prevent employees from complaining about any working conditions.
Yet another recent Abruzzo advice memo attempts to deliver on a previously declared objective to widen the definition of protected concerted activity. This time it was aimed at posting on Facebook. Most troubling was that the Division of Advice took the position that the posting was “inherently concerted activity,” regardless of whether the post called for group action or mutual aid.
The energetic Abruzzo, following up on the November 2021 announced cooperation between the NLRB and the Equal Employment Opportunities Commission, released another memo in early February outlining the strengthening of information sharing, investigation, enforcement, training, and outreach efforts including not only the EEOC, but other agencies:
- the Occupational Safety and Health Administration
- the Mine Safety and Health Administration
- the Office of Federal Contract Compliance Programs
- the Office of Labor-Management Standards, and the
- Department of Labor’s Wage and Hour Division
The memo also announced the NLRB’s partnerships with the Internal Revenue Service, the Department of Justice’s Antitrust Division, and the Federal Trade Commission. The motivation is supposedly to:
- reduce misclassification of employees
- create mechanisms for sharing data about acquisitions, mergers or similar employer organizational actions that might impact organizing or bargaining efforts
- introduce stronger whistleblower and anti-retaliation protections, and
- give greater attention to non-disclosure, non-solicitation, and non-compete agreements that would allegedly violate employees’ rights under Section 7 of the National Labor Relations Act (NLRA).
Meanwhile, the White House’s Task Force on Worker Organizing and Empowerment finally released its report. The 43-page document lays out dozens of recommendations, mostly aimed at the federal government but many of those impact private sector employers who do work for the government. The three core areas of focus are:
- Federal government as “model actor” (increase organizing for federal contractors and employees)
- Provide information and transparency regarding worker rights, increase use of FMCS in contract negotiations, make DOL a “resource center” for employees
- Preference for unionized contractors, ensure federal dollars not spent on “anti-union” campaign activities.
Key recommendations to keep an eye on include:
- Persuader reporting changes
- Encourage conciliation, mediation, and arbitration for first contracts
- Bargaining rights for TSA
- Increased access for organizers on federal bases, private sector contractors working on federal property
- Know your rights initiative, expand worker.gov outreach activity
- Allow automatic dues deductions from payments to Medicare providers.
Yet again, Democrats are trying to sneak a pro-union provision into a non-related bill to advance the pro-union agenda. The America Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength Act of 2022 (America COMPETES Act) is intended to boost U.S. competitiveness with China, specifically in semiconductor manufacturing and research. However, Representative Eddie Bernice Johnson (D., Texas), included an amendment that requires private manufacturers to have a unionized workforce to receive grants allocated by the act.
Going against the tide, Florida Senator Marco Rubio and Indiana Representative Jim Banks have teamed up to introduce a pro-worker labor reform bill. According to the one-page summary, the bill:
- Provides new authority for employees and employers to establish voluntary Employee Involvement Organizations (EIOs) to discuss workplace issues;
- Clarifies that an EIO may be established and dissolved by mutual consent between employers and employees, is not authorized to engage in or negotiate collective bargaining agreements with employers, and does not preclude employees from forming a labor union;
- Ensures that violations of EIO-related provisions shall be adjudicated in the U.S. court system, and not by the National Labor Relations Board; and
- Provides EIO members at companies with more than $1 billion in yearly gross revenues with the opportunity to elect a representative to serve as a nonvoting member on the company’s board of directors.
