Labor Board, General Counsel Forge Different Paths to Same Goal

The National Labor Relations Board’s Democratic majority and the agency’s top lawyer are working together to change labor law for the benefit of workers and unions despite not always moving in perfect harmony, according to a Bloomberg Law analysis of precedential rulings.

The NLRB adopted the legal theories promoted by General Counsel Jennifer Abruzzo without significant differences in six of 14 cases in which her office submitted briefs arguing for a certain outcome and the board set new precedent since July 2021.

But the board didn’t break sharply from Abruzzo in those eight other precedential decisions. Instead, the NLRB varied to different degrees in the approach it used to accomplish the same general policy outcome.

“The board has to think about how decisions are going to be administered and enforced and they have to worry about the courts and what’s going to survive a judicial challenge,” said Wilma Liebman, former NLRB chair under President Barack Obama. “So what I’m seeing here isn’t so much of a difference of opinion about a policy goal, it’s just a different path to getting there.”

The comparison of GC briefs and final decisions provides clues about the NLRB’s deliberative process and reveals slight differences between Abruzzo’s interpretation of the National Labor Relations Act and that of the board’s Democratic majority.

Although the NLRB is an independent agency that doesn’t act under direct White House orders to implement a pro-union agenda, President Joe Biden set up favorable conditions for organized labor by putting agency leadership in place. That effort began on Inauguration Day, when he fired the Trump-era general counsel. He nominated Abruzzo for that post a month later.

Biden also elevated NLRB veteran Lauren McFerran to the position of board chair and nominated two longtime union lawyers, Gwynne Wilcox and David Prouty, to round out the Democratic majority. Member Marvin Kaplan is the lone Republican, as the White House has left the other GOP seat on the board empty for a year and counting.

The NLRB sets labor law policy almost exclusively through individual decisions in cases dealing with issues about union elections and alleged labor law violations. Election cases arise primarily via union representation petitions, while the general counsel’s office prosecutes unfair labor practice cases. ULP cases also give the GC a route to advocate for changes to precedent.

Abruzzo took the reins of the agency’s legal arm in July 2021 and soon after announced an ambitious slate of case law that she wanted the board to change, including dozens of business-friendly Trump-era rulings as well as precedents dating back decades.

The NLRB doesn’t act as a rubber stamp for the general counsel’s interpretation of the NLRA, but Abruzzo and the three Democratic board members share similar perspectives about the goals of that law, said Ellen Dichner, a lecturer at CUNY School of Labor and Urban Studies and former chief counsel at the NLRB.

“They’re definitely rowing in the same direction, I think that’s clear,” said Brian Petruska, general counsel at the LIUNA Mid-Atlantic Regional Organizing Fund. “To the extent that there are differences, I think that has to do with the board staying within what it views as comfortably authorized by the statute.”

Consequential Damages

An example of that type of difference appears in the Thryv, Inc. decision, Petruska said.

The December 2022 ruling enhanced NLRB remedies by codifying the board’s practice of requiring employers to pay for the financial consequences of labor law violations, such as reimbursing medical bills for a worker who lost health insurance because of an illegal termination.

Abruzzo favored that change and more, arguing that the board should similarly award consequential damages for non-economic harms, such as emotional distress or reputational damage.

But the NLRB declined to include payment for non-economic injuries and rejected even using the term “consequential damages,” saying it’s a term of art used in common law torts and contracts. Instead, the board settled on calling it compensation “for direct or foreseeable pecuniary harms that result from the respondent’s unfair labor practice.”

“The board, based on its role, is inherently going to be more conservative,” Petruska said. “It’s natural that the general counsel, acting as an advocate, is going to be more zealous in her interpretations.”

Variations between what the general counsel advocates for and how the NLRB rules also stem from the Democratic board majority needing to work together to reach a consensus, said Cathy Creighton, a former NLRB attorney and director of Cornell University’s School of Industrial and Labor Relations.

“The difference between the general counsel position and the board is that the board is made up of a group of people and not one person,” she said. “So even if your group is presumably on the same side, McFerran, Prouty, and Wilcox are different creatures.”

Board Versions

The NLRB has found its own way to approach some of the other changes to board law Abruzzo sought.

Most prominently, the board declined to revive the standard from its 1949 ruling in Joy Silk Mills Inc., which required employers to recognize and bargain with unions with a majority support from workers, unless they had a good faith reason to doubt that support.

The NLRB instead borrowed from Joy Silk to fashion a new framework to swiftly obtain an employer’s bargaining obligation and discourage unfair labor practices before elections with its decision in Cemex Construction Materials Pacific LLC.

Other NLRB divergences from Abruzzo’s advocacy has less impact.

For Intertape Polymer Corp., the general counsel had asked the board to overturn its 2019 decision in Tschiggfrie Properties Ltd., arguing it improperly changed the legal test for determining anti-union discrimination.

But the board said that Abruzzo misinterpreted Tschiggfrie by reading it as raising the general counsel’s burden to prove anti-union animus, and that it actually didn’t affect the legal test at issue.

Partisan Flip-Flops

The six precedential rulings with no significant differences between the board’s ruling and Abruzzo’s legal theory all featured Trump-era decisions being struck down and a return to the standards that had previously been in place.

Those include decisions like Lion Elastomers LLC, American Steel Construction, Inc., and Bexar County Performing Arts Center Foundation.

That set of decisions reflects the usual flip-flopping of labor law policy that happens with the change of partisan control of the board, said Steven Bernstein, co-chair of management-side firm Fisher & Phillips LLP’s labor relations group.

“There’s a box of precedents that is most subject to the swing of the pendulum,” Bernstein said. “The labor law community has come to live with the rhythm and cadence of how this agency operates.”

There are still legal theories that Abruzzo has advocated for and her office has briefed, but the board hasn’t acted on yet. They include outlawing “captive audience meetings” and strengthening remedies for refusal-to-bargain violations by overturning Ex-Cell-O Corp.

With a presidential election looming in late 2024, the coming year could be the last for Abruzzo to work with the Democratic majority to shape federal labor law.

“She’s pushing everyone,” Creighton said of the general counsel. “With the election coming up, all she can do is just keep pushing and get as much done as she can. I don’t think she’ll be giving up.”