Abruzzo’s Plan to Overhaul NLRB Precedent Still in Need of Cases

National Labor Relations Board General Counsel Jennifer Abruzzo is still lacking cases she can use to challenge certain precedents as part of her campaign to shift federal labor law to benefit workers and unions.

NLRB case law on intermittent strikes, access to employer property, and a dozen other legal issues remain on Abruzzo’s list of precedents she wants the board to overturn, yet don’t have a case where that’s a possibility, she said Wednesday at an American Bar Association conference in San Juan, Puerto Rico.

Abruzzo targeted 53 separate issues for changes in precedent in a memorandum issued a few weeks after winning Senate confirmation to serve as the NLRB’s top lawyer in July 2021. Of those, only 14 still lack a vehicle to do so, she said.

The relatively small number of outstanding issues that don’t currently have cases to get them before the board shows the extent of Abruzzo’s progress after less than two years in office.

Calling out those issues at the conference will likely motivate unions to file charges focused on creating the vehicles to change those precedents.

Moderator Kathryn Siegel of Littler Mendelson PC joked that she “saw union counsel making a Christmas wish list for Jennifer.”

The general counsel’s office has filed briefs with the board for a majority of the targeted issues, Abruzzo said. Those cases ripe for NLRB rulings cover challenges to precedent on employer handbook rules, employment classification, and companies’ right to make unilateral changes to job terms.

The board has ruled on three issues, including last week’s decision overturning a Trump-era precedent that gave employers broad latitude to include gag orders, waivers of the right to sue, and other contractual conditions in severance agreements.

But Abruzzo said she won’t let her precedent-changing goals stand in the way of settling a case, even if that means losing the only vehicle to press for establishing new case law.

“It’s more important to me that we are remedying workplace violations as quickly as possible,” she said.

Abruzzo also said NLRB lawyers won’t issue complaints for conduct that’s legal under current board law that she wants changed, unless there are related alleged violations of current law.

“I believe that if people are not violating the law, I am not going to issue a complaint because I don’t like the law,” Abruzzo said.

Decades-Old Decisions

Nine of the 14 legal issues without vehicles are governed by Trump-era decisions issued in 2019, including the definition of illegal intermittent strikes in Wal-Mart Stores, restrictions on access to employer property in UPMC and Kroger Ltd Partnership, mandatory arbitration agreements in Cordura Restaurants, and union lobbying expenses in United Nurses & Allied Professionals (Kent Hospital).

Other matters decided during the Trump administration that await cases to bring them to the board include:

• NLRB jurisdiction over workers arguably covered by the Railway Labor Act in 2019’s ABM Onsite Services-West;
• the difference between union solicitation and mere talk in 2020’s Wynn Las Vegas;
• union information requests related to customer complaints in 2019’s NP Palace d/b/a Palace Station Hotel & Casino;
• discrimination in successorship situations in 2019’s Ridgewood Health Care Center; and
• exchanging offers of reinstatement for enhanced back pay awards in 2020’s Shamrock Foods.

Abruzzo’s list of issues awaiting cases includes three connected to rulings from the George W. Bush administration: labor law’s coverage of people with disabilities in Brevard Achievement Center from 2004; remedies for violations in the construction industry Oil Capitol Sheet Metal in 2007; and withdrawal of union recognition in 2007’s Shaw’s Supermarkets.

Two issues date back even further: union information requests related to employer relocations in Dubuque Packing from the George H.W. Bush administration in 1991; and employers’ power to set job terms for strike replacement workers stemming from the Reagan-era ruling in Service Electric in 1986.