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NLRB Could Restore Card Check Standard

General Counsel Jennifer Abruzzo wants to make card check the standard way to form a union

Brian Young's picture
Aug 18, 2021

For the last four years the National Labor Relations Board (NLRB) has been on a warpath against unions. Trump’s appointees, including General Counsel Peter Robb, used the board to weaken labor laws and swing the balance of power towards employers. Although Robb was fired on day 1 of the Biden administration, Trump appointees have continued to hold a majority on the board.

This will change though on August 28th when Bill Emmanuel’s term ends and he is replaced by Biden appointee David Prouty. In advance of the change in power, NLRB General Counsel Jennifer Abruzzo has issued a ten-page memo laying out the cases and issues that she wants to take up.

According to the memo, some of the areas that Abruzzo will focus on include:

  • scrutiny of employee handbooks and policies
  • employee use of employer email systems
  • expansion of protected concerted activity
  • management rights clauses and employer flexibility to manage under labor agreements
  • organization of micro-units
  • union election rules
  • captive audience meetings
  • joint employer status
  • independent contractors

Many of these issues were also focused on by the NLRB under Robb, but the decisions were decidedly more anti-union than how Abruzzo and the Democratic controlled board is expected to vote.

“Over the past several years, the Board has made numerous adjustments to the law, including a wide array of doctrinal shifts,” Abruzzo said in the memo. “These shifts include overruling many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers. At the same time, there are many other issues that also should be carefully considered to determine whether current law ensures that employees have the right to exercise their fundamental Section 7 rights both fully and freely. Submissions of these topics to Advice will allow the Regional Advice Branch to reexamine these areas and counsel the General Counsel’s office on whether change is necessary to fulfill the Act’s mission.”

Abruzzo also laid out the cases that she believes the board will be able to take up to fulfill this new mission. This included listing cases that will directly overturn Trump-era decisions on issues like employer handbooks, confidentiality agreements, and what is considered concerted protected activity. She also wants the board to consider reviving the Joy Silk Mills doctrine, which is a rule from the 1940s. This doctrine held that an employer could refuse to bargain with a union that claimed a majority of authorization cards only if the employer had a “good faith doubt” about the union’s claimed majority status. Examples including doubting the authenticity of the cards, or if the employer had independent knowledge that the majority claim was false. If found to legitimately possess such a doubt, the employer could insist that the union establish its majority through a representation election. But without such good faith doubt, the employer would be found to commit an unfair labor practice under Section 8(a)(5) if it refused to bargain with a union claiming to represent a majority of bargaining-unit employees.

While Abruzzo’s plans are definitely a swing for the fences, she will have at least three years to attempt to push them through, with a friendly board that includes two former lawyers for unions. Union members should hope that Abruzzo is able to use the NLRB to restore and expand many of the labor rights that have been taken away over the last few decades.

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