Last week, the American Bar Association’s Section on Labor and Employment Law, Committee on the Developing Labor Law, gathered in Kauai for its annual mid-winter meeting, featuring presentations from top labor law attorneys and NLRB General Counsel Jennifer Abruzzo and her staff. While the weather outside was balmy, management attorneys felt a distinct chill as members of the General Counsel’s Office spoke about their views of the National Labor Relations Act and what it means for employers. In a nutshell, it seems clear that the NLRB GC and her team view the Act as providing employees with an ever-expanding set of rights and believe the Board should impose increasingly severe sanctions against employers who either wittingly or unwittingly violate those rights.
Remarks by Deputy General Counsel Peter Sung Ohr regarding the scope of employee “protected activity” under the Act were instructive – and alarming. For example, Ohr opined that the scope of protected activity under the Act continues to expand, not just concerning the manner in which employees express themselves, but also the subjects or topics about which they express themselves. For example, it is well-settled that the Act protects various forms of employee expression concerning wages and benefits, including by the spoken word, the written word, online social media and protest activity – this has been clear for years, if not decades. However, Ohr noted that employee agitation with regard to social issues not centered on the employees’ own workplace may nevertheless constitute “protected activity” if the employees are discussing it at work and/or seeking action from their employer with regard to such matters. Relatedly, based on Ohr’s comments and recent complaints issued against Whole Foods and Home Depot, the NLRB GC appears to view employee action in the form of verbal expression or the wearing of pins or insignia in support of Black Lives Matter (BLM) as absolutely protected, to the same degree as employees’ union activity. While the GC purports to equate employee support for BLM with opposition to workplace discrimination, which clearly is protected activity, the larger issue is that there is no obvious limiting principle to the GC’s position. In other words, if employees’ public verbal support for BLM is protected, why not support for the major political parties, fringe parties such as the Democratic Socialists of America, or any other political party or movement (think MAGA) where the only connection to employees’ terms and conditions of employment is their own support for it? Indeed, the GC’s legal position effectively requires employers to permit employees’ public expression of support for controversial causes and organizations at work, on working time; that is likely to create division in the workplace and alienate customers. The GC’s office shows no concern for the deleterious consequences for employers if its legal position is adopted into law by the Board, a matter that remains pending.
For her part, Abruzzo devoted much of her time to voicing her support for more severe penalties for employers that are found to have violated the Act, including consequential damages and even emotional distress damages for employees found to have been terminated unlawfully, something the Board has never done before. Abruzzo expressed support for re-introducing Joy Silk Mills bargaining orders to the Board arsenal – stay tuned for my colleague Andrew MacDonald’s post on this. Abruzzo also seemed favorably inclined towards imposing novel remedies against employers that are found to have bargained in bad faith, including, potentially, Board-ordered wage increases to compensate employees for the consequences of an employer’s unlawful dilatory tactics at the bargaining table. It bears mentioning that under the Act, the Board does not have the power to impose contract terms on parties to collective bargaining, nor can either party be compelled to accept or agree to any particular proposal or provision. The Supreme Court affirmed these limits to the Board’s power over 50 years ago in H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970), and Abruzzo did not explain how the Board can circumvent these restrictions. Nevertheless, her remarks on this subject are cause for concern.
This is game-changing stuff. It seems clear that GC Abruzzo and her staff are fully committed to making good on then-candidate Biden’s promise to be “the most pro-Union President ever.” Employers must understand that heretofore well-settled legal principles are at risk for sudden change under this Board – and that such changes frequently are made retroactively, to apply to all cases then pending. Accordingly, employers are well-advised to consult with competent labor counsel to ensure compliance with the expanding ambit of the Act to avoid increasingly harsh penalties for noncompliance.
For additional information, please contact Robert C. Nagle or the Fox attorney with whom you regularly work.