The National Labor Relations Board 2022 Year In Review ' An Overview Of Major Developments In Labor Law

• Jurisdiction: United States,Federal
• Law Firm: McNees Wallace & Nurick
• Subject Matter: Employment and HR, Unfair/ Wrongful Dismissal, Employee Rights/ Labour Relations
• Author: Mr Adam Santucci, Langdon T. Ramsburg and William C. Boak
• Published date: 02 February 2023

INTRODUCTION

2022 was a great year for U.S. labor unions and employees, but not so much for U.S. employers. The Biden National Labor Relations Board (NLRB) dug in and got to work, reversing precedent and charting a course to reinterpret the National Labor Relations Act (NLRA) in new and unimaginable ways.

The Board's General Counsel continued to issue Memoranda exposing her views on key issues, and the Board demonstrated its intentions to support her aggressive approach when given the opportunity. The Board, in its own right, proposed changing some key rules, including changing the test used to determine joint employment status, which was just adopted in 2020.

The Board did not stop with rule making. It continued to issue decisions driving a pro-labor agenda that we predicted last year. We will detail some of the most significant decisions below.

In Fiscal Year 2022, the Board issued 243 decisions, 132 unfair labor practice charge-related decisions, and 111 decisions in representation cases. The Board also dealt with a sharp increase in cases. According to its Annual Performance and Accountability Report, the Board processed nearly 18,000 unfair labor practice charges and 2,511 petitions for election. That last figure is staggering and represents an increase of nearly 900 election petitions from the year prior. That is a 53 percent increase over 2021. The Board had not received greater than 2,500 election petitions since 2016. That increase in representation petitions tracks well with the wide-ranging media attention around union organizing efforts at several large U.S. employers.

Critically for employers, those election petitions were processed quickly, and initial elections were conducted in a median of 37 days from the filing of the petition. When you put those statistics together that means there was a big increase in the number of union-organizing efforts and typically a very short period of time for employers to respond to those campaigns.

This sharp increase in cases apparently has had consequences for the Board. At the end of the calendar year, the Board was making headlines as it pled for additional funding, claiming that it would not have the ability to fulfill its mission without a funding increase. In its 2022 Fiscal Year report, the Board claimed that it would not have the capacity to keep pace with the increase in cases without a budgetary increase.

The agency also reported that it recovered over $51 million in backpay, damages, fees, dues, and fines for employees. In addition, 995 employees were offered reinstatement. Although it claimed to be underfunded, the Board certainly got a lot of things done.

We summarize the key labor law developments from 2022 below.

GENERAL COUNSEL ADVICE MEMORANDA

General Counsel Jennifer Abruzzo set forth an aggressive and multi-faceted pro-union and pro-employee agenda. Highlighted below are some of the key initiatives that GC Abruzzo laid out in Advice Memoranda issued last year.

GC 22-01 – Ensuring Rights and Remedies for Immigrant Workers

Memorandum GC 22-01 outlines the General Counsel's plan to ensure that immigrant workers receive the protections of the Act, without regard to immigration status or work authorization. Among other things, the Memo provides that Board Agents "should advise every person giving affidavit testimony that an individual's immigration or work authorization status is not relevant to the investigation of whether the Act has been violated, and that the Board agent will not inquire about the individual's immigration or work authorization status."

The Memo also directed the regions to distribute information regarding the protections of the Act, the location of regional offices, and the security and safety procedures available to witnesses widely through local immigrant communities and advocacy groups. These materials will be distributed in multiple languages. It also calls upon the regions to develop "imaginative and robust remedies tailored" specifically for immigrant employees.

GC 22-02 – Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns

Historically, the Board's effort to obtain injunctive relief pursuant to Section 10(j) of the Act is sought in cases involving interference with organizing campaigns if a union supporter has been terminated in an alleged effort to stop a union organizing campaign. In GC Memo 22-02, GC Abruzzo announced that it was her belief that Section 10(j) injunctions should be sought immediately after employees have been subject to threats or other coercive conduct during an organizing campaign, and "before an employer follows through on its threats or coercion."

Certainly, such an approach will significantly expand the number of times the General Counsel's office seeks injunctive relief during a campaign. It is easy to see when an employee has been discharged. But alleged threats are another matter. Allegations regarding alleged threats or coercion are far more common than actual employee terminations. And often, such situations present as he said/she said, with an underlying factual dispute.

What does this mean for employers facing a union organizing campaign? It means that in addition to attempting to run an educational campaign to provide truthful and accurate information regarding the costs of union organizing, and avoiding unfair labor practice charges, employers are now faced with a significantly increased risk of a possible fast moving legal battle with the United States government.

GC 22-04 Right to Refrain from Captive Audience Meetings

In what is likely the biggest bombshell from the General Counsel last year, GC 22-04 lays out her belief that mandatory captive audience meetings with employees violate Section 7 of the Act, despite the fact that such meetings have been deemed lawful for over 60 years. Babcock & Wilcox Co., 77 NLRB 577 (1948). Employers have relied on that well established precedent to conduct educational meetings with employees to ensure that workers hear and understand the key issues involved, including the costs, of union organizing. Such meetings, held on working time and while employees are being paid, are very common during organizing campaigns. Employers' rights to speak out against the union are grounded in the First Amendment of United States Constitution.

However, GC Abruzzo has taken issue with such meetings. In her memorandum, she states that "forcing employees to listen to such employer speech under threat of discipline—directly leveraging the employees' dependence on their jobs—plainly chills employees' protected right to refrain from listening to this speech in violation of Section 8(a)(1)." Although her position is directly contrary to 60 years of Board case law, she outlined her plan to litigate the issue and obtain a ruling that captive audience meetings, without certain prophylactic measures, are unlawful under the Act.

The memorandum outlines two circumstances where employer conduct should be deemed unlawful, "when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties" to discuss Section 7 rights under the Act. As we know, Section 7 rights are extremely broad, and therefore, the GC's position here is staggering in scope. These prohibitions would seem to cover mandatory employer meetings on a broad range of topics, including safety and job duties, and supervisor conversations an equally broad array of subjects. Thus, it appears that the GC's approach could significantly upset fundamental workplace dynamics.

Whether the Board, and the appellate courts, agree with her position remains to be seen. We will certainly be following this one closely. In the meantime, employers facing union organizing campaigns should work closely with labor counsel to navigate educational employee meetings.

GC 22-06 Update on Efforts to Secure Full Remedies in Settlements

In September of 2021, GC. Abruzzo issued GC 21-06 and 21-07 related to remedial measures. We covered these memoranda last year. In June of 2022, GC Abruzzo issued GC 22-06, which identified various types of remedies that the regions should seek, and certain default language to be included, or excluded, in settlement agreements.

GC 22-06 highlights some of the "imaginative" remedies obtained by the regions, including the recovery of the cost of baby formula, the cost of retrofitting a car for a different job, and requiring senior management officials to read a copy of a Notice to all employees. Other interesting (maybe disturbing) remedies listed include an apology letter to reinstated employees, requiring application forms and recruitment advertisements to include a statement of employee rights; and requiring the employer to reimburse a union's bargaining costs during a period of alleged bad faith bargaining.

In the memo, GC Abruzzo also shared her opinion that settlement agreements should NOT include non-admissions clauses. Such clauses allow the parties to settle issues without the need for stating affirmatively that one party has violated the Act. This is often central to an employer's goals in settling a charge. Thus, GC Abruzzo's position will very likely make settlement much less likely.

The unwillingness to consider including such a standard, basic statement (which has zero impact on any potentially involved employees) will likely lead to more litigation and fewer settlements, further straining the Board's apparently limited resources.

GC 23-02 Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.

On October 31, 2022, GC Abruzzo issued Memorandum GC 23-02, which outlined her position on the use of electronic monitoring and algorithmic management of employees. The memo sets forth her view that surveillance and other algorithmic-management tools may interfere with the exercise of Section 7 rights "by significantly impairing or negating employees'...