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E-Alert: NLRB GC Takes Another Step Toward Fulfilling Her Aggressive Agenda

Since being confirmed as General Counsel (GC) for the National Labor Relations Board (NLRB), the agency's top prosecutor, Jennifer Abruzzo, has urged the Board to take extraordinary pro-labor positions, including her most recent that seeks to overturn decades of two well-established labor law principles under the National Labor Relations Act (Act).

The GC’s office filed a brief on April 11, 2022, in the Cemex Construction Materials Pacific case arguing that the Board should overhaul well established law under the Act. Specifically, the GC’s brief is arguing to restore the Joy Silk standard regarding a union’s demand for recognition and to reverse precedent that would make employer “captive audience speeches” unlawful, unless very specific safeguards are in place to “minimize the coercive impact of such employer” speech.

First, a return to the Joy Silk standard would require an employer to bargain with a union where the union represents a majority of employees in an appropriate unit and makes a demand for recognition. An employer could only refuse this demand for recognition if it could establish a “good faith doubt” as to the union’s majority status. If an employer is unable to meet its burden to establish a good-faith doubt of the union’s majority status, or if it commits an unfair labor practice, the employer would be required to bargain with the union. This is a completely ambiguous standard and would overturn current precedent that allows employers to ask for a secret ballot election to determine if the union has majority support. The Joy Silk framework would do away with the time an employer would have to lawfully present its position on unionization to its employees.

Second, the GC is looking to overturn the precedence set in the Babcock & Wilcox case that allows for employers to lawfully hold meetings, on company time, to express its views on unionization to employees. The GC’s position here is in line with a memo she issued on April 7, 2022, where she argued that captive audience speeches violate employees’ Section 7 rights by giving employers a “license to coerce.” Such a shift in well-established precedence would leave employer unable to express its views on why employees should not vote for a union.

As mentioned above, the GC set a very aggressive agenda when she was appointed and has shown she is determined to make that agenda a reality. Practically speaking, if the GC’s positions on these two items are adopted, it will effectively strip employers of their right to express their views on unionization in their workplace while at the same time making it easier for unions to demand bargaining based on an alleged showing of majority support.

If you have any questions regarding this matter, please contact one of our labor and employment attorneys at 501-371-9999.

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