Abruzzo’s Tweets Take Aim at Employer-Friendly Labor Law Precedent

NLRB Normal Counsel Jennifer Abruzzo not too long ago tweeted her intention to push for 2 elementary pro-union adjustments to U.S. labor regulation. Piggybacking on her August 12 memo detailing circumstances that should be submitted to advice, Abruzzo focused employer free speech and using everlasting replacements throughout financial strikes.

Employer Free Speech

Throughout a union marketing campaign, an employer is restricted in what it might probably talk to workers relating to unionization. However Part 8(c) of the Nationwide Labor Relations Act supplies that the “expression of any views” by an employer is lawful as long as it doesn’t include “a threat of reprisal or force or promise of benefit.” 

Below the NLRB’s 1985 Tri-Solid determination, this has been interpreted to supply employers with broad freedom to talk with workers about the advantages and dangers of unionization. Particularly, Tri-Solid handled a standard speaking level throughout a union marketing campaign: that if workers vote in a union the employer and workers will now not be capable to work immediately collectively, however quite must work by way of the union. The Board discovered that the assertion was not illegal, regardless of maybe conflicting with the truth that workers have a statutory proper to convey complaints on to their employer, whether or not they have a union or not. Following precedent, the Tri-Solid Board declined to “probe into the truth or falsity of the parties’ campaign statements.” 

Abruzzo’s aim is to vary that posture and push the Board to police employer statements and misstatements throughout union campaigns, a change that may unwind many years of authorized framework. Nearer scrutiny of employer statements (and people of employer representatives and brokers) throughout campaigns would offer unions with extra grounds to problem shedding election outcomes the place workers have exercised their statutory proper to stay union-free. 

Everlasting Strike Replacements

For greater than half a century – a considerable time frame within the NLRA’s 86-year historical past – employers have been capable of completely substitute employees on strike for higher job circumstances (an financial strike) absent proof that the employer sought to illegally undermine their union.

The usage of everlasting strike replacements could be a highly effective instrument in a strike, as substitute employees enable employers to climate a strike and stay in operation. Certainly, it’s for this goal – searching for to stay in enterprise – that the Board accredited using everlasting strike replacements in its 1964 Sizzling Shoppes determination.

Abruzzo has pushed for a change that may overrule Sizzling Shoppes and require employers to show a “legitimate and substantial business justification” for using everlasting strike replacements. Abruzzo’s aim is an extended shot, and one which was additionally pursued unsuccessfully throughout the Obama administration. The reversal of Sizzling Shoppes would undermine the NLRA’s said aim of selling industrial peace by encouraging extra frequent strikes.

Abruzzo faces an extended highway in any try to overturn many years of precedent. However with a pro-union Board and a number of other extra years to institute change, employers ought to stay vigilant of those potential labor regulation adjustments. 

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