NLRB GC Issues Updated Memo on Prosecutorial Priorities
On March 20, 2023, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo issued an updated memo outlining her prosecutorial priorities. GC Abruzzo’s prior August 2021 memo identified 46 issue areas for resolution, of which GC Abruzzo believes 31 have been sufficiently addressed in subsequent guidance from the Division of Advice for ordinary labor disputes. Consequently, just 15 of these issue areas remain on the mandatory submission roster.
In particular, GC Jennifer Abruzzo issued GC Memo 23-04, an update to her August 2021 memo outlining her prosecutorial priorities. This includes a significantly shortened list of mandatory submissions to the Division of Advice, which entails the reconsideration of Board decisions that GC Abruzzo believes compromise workers’ rights to join together to improve wages, benefits and working conditions.
Although the August 2021 memo identified 46 issue areas for resolution, the Division of Advice has subsequently issued guidance that GC Abruzzo believes has sufficiently addressed 31 of these issues in garden-variety labor disputes. Therefore, apart from cases with unusual facts or complexities that would make Advice consideration appropriate, the NLRB’s regional offices have been authorized to proceed independently on these issues based on outstanding guidance.
Only 15 issues from the August 2021 memo remain on the mandatory submission roster. Five of these issues are especially critical to the interests of employers and management and concern cases involving the applicability of the following Board decisions:
- Johnson Controls, Inc., 368 NLRB No. 20 (2019), which overruled the “last in time” rule and requires that unions facing anticipatory withdrawal of recognition, based upon evidence of losses of majority support within 90 days before contract expiration, may only reacquire majority status through filing a petition for a Board election within 45 days from the date the employer gives notice of the anticipatory withdrawal, during which time the employer may refuse to bargain or suspend bargaining for a successor contract.
- Ridgewood Health Care Center, Inc., 367 NLRB No. 110 (2019), which found that a successor employer which discriminates in refusing to hire a certain number of the predecessor’s workforce to avoid a successorship bargaining obligation, does not necessarily forfeit the right to set employees’ initial terms.
- Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007), which permits midterm withdrawals of recognition where they occur after the third year of a contract of longer duration.
- Wal-Mart Stores, 368 NLRB No. 24 (2019), which broadly defined the concept of an intermittent strike.
- Service Electric Co., 281 NLRB 633 (1986), which allows employers to unilaterally set employment terms and conditions for replacements, even where those terms are superior to the terms in place for striking unit employees.
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