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It’s no surprise to labor law watchers that the National Labor Relations Board (NLRB) often reverses course on significant labor law following a change in administration. In fact, it’s expected. With NLRB General Counsel (GC) Jennifer Abruzzo at the helm, backed by a Democratic-majority Board, we can predict dramatic changes through rulemaking, case decisions, and strong enforcement policies.

While the changes made by the Trump-era general counsel and Board relaxed restrictions on employers and disfavored unions, we see the present Board and GC pushing in the opposite direction, with results that favor unionization and inhibit employer opposition to these campaigns.

Amazon Case

Since 2022, Amazon has been ensnarled in defense of its actions as it responds to unionization efforts at its New York facility. A recent administrative law judge (ALJ) decision dismissed some allegations of unlawful conduct on the part of Amazon. On March 31, 2023, however, the GC's office submitted a brief raising several objections to the ALJ's findings. The GC's basis for the objections focuses on four Board precedents—some dating back almost 80 years—and asserts they should all be reversed.

Babcock & Wilcox Co.

In the brief, the GC claimed that the long-standing precedent in Babcock & Wilcox Co. (NLRB 1948) should be overturned and that Amazon’s mandatory anti-union meetings, also called captive audience meetings, should be found to have violated the National Labor Relations Act (NLRA). For a captive audience meeting, the employer gathers employees to give them facts and opinions about why they should vote against the union. It’s one of an employer's most effective tools in pushing against union campaigns. Abruzzo has openly expressed her view that captive audiences are coercive and intimidating; the brief asks the Board to review if this precedent is “out of step with the reality of workers’ day-to-day life” due to the coercive nature of the meeting. It's worth noting that unions are permitted to engage in this type of conduct during their campaigns.

Tri-Cast Inc.

The GC's office also seeks to overturn precedent established in Tri-Cast Inc. (NLRB 1985), where employers are given some room to thwart unionization efforts by telling workers that unions will affect their ability to pursue individual grievances. Here, Amazon told its workers that they would “lose the right to speak for yourself” if they were represented by a union. The GC argues this is an unlawful threat because Amazon told workers they would lose an important right - the right to speak and interact with management regarding grievances. Further, this type of statement is a misrepresentation of employee rights under Section 9(a) of the NLRA, where employees retain the right to bring grievances to the employer without the “intervention” of the union. The GC concludes that the Board should overrule Tri-Cast and hold that preelection representations by the employer that misrepresent the workers’ rights are unlawful.

Fleming Cos.

The GC also seeks to return to Board precedent in Fleming Cos. (NLRB 2001) and overturn The Guard Publishing d/b/a The Register Guard (NLRB 2007) standard. These cases differ significantly on the standard of whether an employer discriminated when restricting workers’ use of company equipment or property. Under the Fleming Cos. standard, an employer violates the NLRA when it permits employees to use company property for nonwork-related reasons and prohibits pro-union use of the property. The Register Guard ruling limits cases where discriminatory conduct can be found and is more restrictive of employees’ rights. In this case, Amazon removed a worker’s pro-union post because it violated company solicitation policy, but it did not enforce the policy against similar anti-union posts. The GC office argues that Amazon should be found in violation of the NLRA because it prohibited workers’ Section 7 rights.

AT&T Mobility

Finally, the GC seeks a complete reversal of the AT&T Mobility (NLRB 2021) decision that permits employers to retain facially lawful workplace rules used to restrict protected activities. The GC is asking for the rescission of Amazon’s Solicitation Policy because Amazon used the rule disparately with regard to the pro-union posts. The GC justifies this action by the Board to ensure that Amazon won’t continue to unlawfully enforce this policy and to protect the employees from “the chilling effect to their free exercise of Section 7 rights” if the rule remains in place.