NLRB General Counsel Asks the Board to Overrule Longstanding Precedents

The current National Labor Relations Board (NLRB) majority is being pushed to overturn longstanding labor precedents – some that have been in place 75 years – at the behest of their General Counsel (GC), Jennifer Abruzzo.

Republican Members of Congress on the House Education and Labor Committee sent a letter on June 27 to GC Abruzzo, urging that she stop her efforts to rewrite labor law by seeking to ban so-called “captive audience” meetings. The letter comes as a response to GC Memorandum 22-04, which Abruzzo issued on April 7, announcing that she would ask the Board to find that meetings at which employers express their views on union organizing violate the National Labor Relations Act (NLRA).  However, Board precedent—and the text of the law—prove otherwise.

Not long after releasing that memorandum, Abruzzo’s office, through the Counsel for the General Counsel (CGC), filed an 82-page brief in Cemex Construction Materials Pacific LLC in which the CGC urged the Board to overrule Babcock & Wilcox Co. That 1948 Board decision found that the employer did not violate the NLRA “by compelling its employees during working hours to attend and listen” to their supervisor discuss union issues.  

As this blog observed in April, the General Counsel’s view does not jibe with the text of the NLRA, which Congress amended in 1947 to state explicitly that “the expressing of any views, argument, or opinion” by an employer about union issues does not constitute an unfair labor practice provided that it does not include threats of reprisal or promises of benefits. In addition, NLRB and court precedents in the 75 years since then have upheld such employer meetings, so it would be a radical departure should the current Board majority adopt Abruzzo’s interpretation of the law.

The CGC brief also asked the Board also to overturn several other long-established precedents. Perhaps most noteworthy, the CGC encouraged the Board to reinstate the so-called Joy Silk doctrine based on its 1949 decision in Joy Silk Mills, Inc. Under that doctrine, if a union presented evidence of majority support via signature cards and the employer refused recognition without demonstrating good faith doubt about the union’s majority status, then the NLRB could seek an order forcing the business to the bargaining table. In doing so, it would deprive employees of a secret ballot election, otherwise required under the NLRA. By allowing unions to obtain card check recognition, such a policy would expose workers to pressure and harassment to sign recognition cards.

The CGC also asked to overrule three lesser-known precedents, one of which is Tri-Cast, Inc., a 1985 decision in which the Board rightly concluded that pre-election statements by an employer explaining that “when [employees] select a union to represent them, the relationship that existed between the employees and the employer will not be as before” do not run afoul of the NLRA if the statements do not include threats. Instead, the CGC asked the Board to deem such factual statements as somehow violating employees’ rights. In other words, employers should not be able to explain some of the major implications of having a union.

The CGC also urged the Board to overturn its decision in Sysco Grand Rapids. In this case, the NLRB declined to impose a remedial bargaining order because of a four-year delay between the employer’s alleged unfair labor practices and the Board’s decision, as well as the fact that there had been a 30% turnover of employees at the business in question. As the CGC sees it, “the passage of time and subsequent management or employee turnover do not mitigate against issuance of a bargaining order.”

Lastly, the CGC encouraged the Board to overrule Crown Bolt, which returned to the union the burden of proving that an allegedly unlawful threat by the employer had been disseminated among employees. Instead, the CGC asked the Board to place the burden on the employer to demonstrate that such a threat had not been disseminated, a position the Crown Bolt decision said, “runs counter to the burden-allocation norm.”

As observers of labor policy know, the current NLRB majority intends to pursue a radical agenda hostile to employers. And doing as the CGC asks in Cemex would underscore the point.

Story by Sean P. Redmond, U.S. Chamber of Commerce

Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.