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On the Hunt: NLRB’s Top Lawyer Seeks Out Cases to Upend Precedent

After getting off to a relatively slow start, the current National Labor Relations Board (NLRB) composed of a majority of members appointed by President Biden issued a flurry of decisions at the end of 2022 that upended precedent – in favor of unions – on a host of issues. Those decisions took on issues like dress code policies, damages in unfair labor practice cases, and more. Then, in early 2023, the Biden Board issued a major decision affecting provisions employers – union and non-union alike – can include in severance agreements.

One of the people driving all of this change is the current general counsel of the agency, Jennifer Abruzzo. She set an ambitious agenda for change once she was confirmed by the Senate, but it appears she’s lacking cases to accomplish some of the change she needs. Because the NLRB historically sets labor relations policy via precedent issues in individually adjudicated cases, she needs unfair labor practice charges to prosecute implicating the issues she wants to change.

According to a March 1 article in Bloomberg Law, Abruzzo’s Plan to Overhaul NLRB Precedent Still in Need of Cases, “National Labor Relations Board General Counsel Jennifer Abruzzo is still lacking cases she can use to challenge certain precedents as part of her campaign to shift federal labor law to benefit workers and unions. NLRB case law on intermittent strikes, access to employer property, and a dozen other legal issues remain on Abruzzo’s list of precedents she wants the board to overturn, yet don’t have a case where that’s a possibility, she said Wednesday at an American Bar Association conference in San Juan, Puerto Rico.”

The report goes on to state that “calling out those issues will likely” inspire unions to file charges so she can continue to seek the change she wants. We’ll see who heeds her calls. She currently shows no signs of slowing down her push for massive change on the labor law front.

One additional wild card facing Abruzzo is being potentially shorthanded in terms of agency staff and a mounting caseload. The agency has seen a massive influx in union election cases in the last 18 months, in part due to the national Starbucks union campaign. This may affect case processing times, meaning charges on new issues may talk longer to be investigated, which in turn may slow down Abruzzo’s agenda. 

Bottom line: More significant labor law change is coming. When and how much may still be up in the air to some extent, but this remains an area employers should closely monitor for emerging developments.


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