On February 10, 2022, the National Labor Relation Board’s (NLRB) General Counsel, Jennifer Abruzzo, issued Memorandum GC 22-03 announcing her agreement with and support of the Biden administration’s Task Force on Worker Organizing and Empowerment (Task Force) February 7, 2022 report. The Task Force was created by executive order in April 2021 to identify ways the executive branch can promote worker organization and collective bargaining through existing policies and programs. The Task Force’s report included recommendations to increase organizing and encourages collaboration between government agencies focused on worker protection. In addition to instructing field offices to adopt the recommendations outlined in the report, Abruzzo’s memorandum details current interagency undertakings and outlines future efforts to strengthen those collaborations.
While the memorandum does not specifically identify which recommendations that field officers should prioritize for implementation, given the NLRB’s emphasis on increasing employee organizing and collective bargaining, we think the following recommendations will likely be at the top of the list:
- Improve interagency communications with the Federal Labor Relations Authority (FLRA) and Federal Mediation and Conciliation Services (FMCS) concerning newly certified bargaining units to facilitate parties reaching an initial collective bargaining agreement faster.
- Increase reporting of the use of third-party consultants in organization campaigns through the Office of Labor-Management Standards (OLMS) (for more about the implications of reporting this so-called “persuader” activity, please see our May 2021 alert).
- Launch new outreach programs at the national and regional levels specifically aimed at young workers and underserved communities to inform workers of their right to organize and collectively bargain.
- Collaborate with the Department of Labor (DOL) to ensure claims of retaliation for engaging in protected concerted activity are properly brought before the NLRB.
Interagency collaboration has continued to be a point of emphasis for the General Counsel’s office. Abruzzo explained interagency collaboration increases worker protections against “systemic abuses, including discrimination, retaliation, and other mistreatment – while also working to promote equity in the workforce.” In turn, increased collaboration, according to Abruzzo, creates valuable efficiencies and facilitates the effectuation of each agency’s respective mission. For the NLRB, this includes securing workers a “voice at the table through union representation if workers so chose.” Abruzzo noted that the NLRB currently has Memorandums of Understanding (MOUs) with nine different agencies including, among others, the Equal Employment Opportunity Commission (EEOC), Department of Homeland Security (DHS), and the DOL. Most recently, the NLRB adopted MOUs with the DOL’s Wage and Hour Division (WHD) and the OLMS late last year. According to the NLRB, many of these MOUs “establish ground rules for information-sharing, investigation, enforcement, training, and outreach.”
Abruzzo then highlighted several upcoming partnerships with other agencies. For example, the NLRB is establishing a series of virtual webinars in conjunction with the EEOC and the DOL to focus on combatting retaliation. She stated the NLRB will expand its partnership with the DHS to protect immigrant workers. Finally, the NLRB is also working with the Internal Revenue Service (IRS), the DOJ’s Antitrust Division and the Federal Trade Commission (FTC) to increase protections against anticompetitive behavior such as employee misclassification and improper wage payment. These collaborations are particularly interesting in light of the DOJ’s recent increased enforcement of federal antitrust laws in labor markets including maintaining criminal charges against individual officers of employers accused of engaging in anticompetitive misconduct.
Employers should continue to monitor interagency collaborations. As Abruzzo noted, such collaboration will “create better avenues for joint investigations, joint enforcement, joint training and outreach activities, and joint policymaking where appropriate.” Coordinated enforcement may result in multifaceted, complex investigations causing uncertainty for employers.
