National Labor Relations Board to Review Recent Legal Decisions

The new General Counsel of the National Labor Relations Board (NLRB) has announced her intention to review recent NLRB  legal decisions. Specifically, General Counsel Jennifer Abruzzo wants to target certain legal decisions issued in the last four years by the NLRB. Markedly, the cases reviewed will be ones that she described as “doctrinal shifts” away from previously settled law. In addition to the recent cases, the NLRB will also examine a set of earlier decisions. Earlier, in June 2021, the NLRB upheld an Administrative Law Judge’s (ALJ) finding on mandatory bargaining and I-9 compliance.

Overview of the NLRB Memorandum

In summary, on August 12th, 2021, the NLRB released Memo GC-21-04 with this intention: to review recent legal decisions. In fact, the memo identifies nearly 40 decisions by the previous NLRB that shifted the balance of workplace power. Accordingly, Abruzzo claims that the previous Trump-appointed majority NLRB placed too much power into the hands of employers. Due to those beliefs, the General Counsel handpicked cases to revisit.

Examples of Cases Up for Review

Chiefly, in the decision to review recent legal decisions, the following are some of the 40 cases up for examination:

• Boeing Co., 365 NLRB No. 154 (2017). In this case, the NLRB imposed a new framework for evaluating workplace rules and policies. Significantly, the policies include confidentiality, non-disparagement, social media, communication with the media, and civility rules.
• Baylor University Medical Center, 369 NLRB No. 43 (2020). In this situation, the NLRB permitted severance agreements requiring terminated workers to refrain from disparaging or suing the employer.
• Alstate Maintenance LLC, 367 NLRB No. 68 (2019). In this case, the NLRB narrowed the scope of protected concerted activity.
• SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019). In this case, the NLRB adopted “entrepreneurial opportunity” as an essential part of determining independent contractor status.

Employee Takeaways

In conclusion, the NLRB General Counsel’s announcement to review recent legal decisions signals an upcoming change in the Board’s demeanor. As a result, employers should soon expect a more “pro-union, pro-employee stance” by NLRB regional directors around the country. Also, employers may need to update any policies that reflected previous decisions that the NLRB might overturn after the review.