There has been a lot of print on the potential disruptions to current labor precedent by the Biden administrations labor board, but not a lot of decisions to date. Pundits expect that to change by fall, as two former NLRB members Mark Pearce and Wilma Liebman said, they expect activity to ramp up over the summer, to accomplish as much as possible before current NLRB member John Ring’s seat expires in December.
Expect to see a vast expansion of protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Signaling an intent to abandon the 2019 Alstate Maintenance standard and return to or expand the prior Wyndham standard, in March 2021, the Board issued Memorandum 21-03 stating that when a single employee speaks about certain social justice issues, the speech is “inherently concerted” (and protected) regardless of whether any of the traditional bases for concertedness are satisfied.
Handbook policies are also in the center of the bullseye. If the board returns to the Lutheran Heritage standard (probably a best-case scenario!), a sampling of the types of policies that would be unlawful include:
- Policies prohibiting “loud, abusive, or foul language”;
- Rules banning “false, vicious, profane, or malicious statements about an employer or its employees”;
- Standards requiring employees to “work harmoniously” with one another; or
- Mandates prohibiting “negative energy or attitudes.”
If the NLRB (and General Counsel Jennifer Abruzzo) have their way, we expect almost every employee handbook in the nation will be found in some way in violation of the NLRA.
As of today, there have been 277 petitions filed at Starbucks locations, and the NLRB is feeling the pinch. Board GC Abruzzo has been seeking to pressure Congress for more funding, and a group of 150 lawmakers appealed to the House Appropriations Committee for a 34% increase in funding. Election petitions are at a 10-year high due to the Starbucks surge. The board has also lost 30% of its staff since 2010 due to attrition and flat funding.
The NLRB has been aggravating the situation further by expanding the opportunity to file ULPs by the unions, such as taking an aggressive approach to employee handbook rules (mentioned above), and by inciting unions to file ULPs in cases of captive audience meetings in order to give Abruzzo a chance to push several of her key issues into the courts. ULPs are up 17%. The appropriations issue is one possible opportunity to keep the NLRB somewhat in check.
Abruzzo’s goal to ban captive audience meetings took another step forward with Connecticut becoming the second state (behind Oregon) to have their legislature ban such meetings. It remains for a court challenge to arise in one of these states to see if such a law can be held in conflict with the National Labor Relations Act.
