Labor law landscape likely to shift in 2022 under Biden-era NLRB

Irina Baranova

The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C., U.S., May 14, 2021. REUTERS/Andrew Kelly

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  • NLRB begins to move away from Trump-era policies
  • Union organizers may get more access to employer property
  • Board may expand protection for expression of political views

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(Reuters) – A Democratic majority took control of the five-member National Labor Relations Board in August and the agency has already signaled an intent to do away with a series of business-friendly Trump-era moves and expand legal protections for workers.

The coming year is likely to bring decisions on worker involvement in social movements, union access to workplaces and the proper scope of bargaining units.

Here is a look at some of the key items on the board’s agenda in 2022.

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PROTECTED ACTIVITY

Newly minted NLRB General Counsel Jennifer Abruzzo has made clear that she will push the five-member board to adopt an expansive view of the type of worker conduct protected by the National Labor Relations Act that includes rights to participate in protests and social movements.

The NLRA protects “concerted activities” that employees engage in to improve working conditions. Historically, and particularly during the Trump administration, the board construed the protection as applying to conduct directly related to a specific worksite, such as protesting an employer’s overtime policy.

Abruzzo’s office has filed complaints claiming Home Depot USA Inc. and Whole Foods Market Services Inc violated the NLRA by barring employees from wearing Black Lives Matter facemasks and other attire at work. If the board agrees, it could open the door to a new era of labor litigation and restrictions on rules that limit employees’ ability to express their views at work.

The cases are Home Depot USA Inc and Whole Foods Market Services Inc, National Labor Relations Board, Nos. 18-CA-273796 and 01-CA-288032.

For the general counsel in Home Depot: Tyler Wiese.

For Home Depot: Brian Hayes of Ogletree Deakins Nash Smoak & Stewart.

For the charging parties in Whole Foods: Shannon Liss-Riordan of Lichten & Liss-Riordan.

For Whole Foods: Not available.

UNION ACCESS

Another fundamental issue likely to be addressed by the new NLRB majority is the ability of union organizers to campaign for workers’ support on employers’ private property. During the Trump administration, the board issued several rulings curtailing union access and narrowing the definition of unlawful discrimination against union organizers.

Private-sector union membership has steadily declined for decades. But the access issue is getting renewed attention amid the COVID-19 pandemic and high-profile union elections held by employees of large companies like Amazon.com Inc and Starbucks Corp.

In an August memo, Abruzzo said she wants the NLRB to revisit recent decisions involving union access, which could make it easier for organizers to counter anti-union campaigns by employers.

EXPANDED DAMAGES

While Congress debates a controversial proposal that would allow the NLRB to levy punitive damages on employers, the agency will be considering the expansion of existing remedies available to workers subjected to unlawful labor practices.

The board in November called for amicus briefs on whether it should expand traditional remedies, such as back pay, to more fully account for workers’ actual economic losses. The NLRB is considering the issue in a case involving the layoff of workers who sold Yellow Page advertising.

Abruzzo in a September memo pushed NLRB staff lawyers to seek the full gamut of potential remedies for workers, including “consequential damages” reflecting the negative impacts that firings or suspensions can have on workers’ lives.

The case is Thryv Inc, National Labor Relations Board, No. 20–CA–250250.

For Thryv: Arthur Telegen of Seyfarth Shaw.

For the general counsel: Min-Kuk Song.

BARGAINING UNITS

Unions that struggle to organize an employer’s entire workforce have often resorted to carving out smaller units of workers with specific job titles or comparable working conditions. But the Trump-era NLRB made that more difficult by shifting the burden to unions to show that smaller units are appropriate.

Now, the board is considering reverting back to a test created during the Obama administration under which smaller bargaining units are more likely to be approved. And in a December call for amicus briefs, the NLRB indicated that it could go even further in revising the standard.

A more union-friendly test could spur more labor organizing, with the biggest potential impacts in retail, manufacturing, warehousing and higher education.

The case is American Steel Construction, National Labor Relations Board, No. 07–RC–269162.

For American Steel: Raymond Carey of Gasiorek Morgan Greco McCauley & Kotzian.

For the petitioner: Daniel Bryar of Hartnett Reyes-Jones.

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https://www.reuters.com/legal/transactional/labor-law-landscape-likely-shift-2022-under-biden-era-nlrb-2021-12-30/

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