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New NLRB GC Reverses Policies

The new general counsel of the National Labor Relations Board signaled that there is a new sheriff in town – for at least the next two weeks.

Confirmed in November, Peter Robb has sent a memo to the agency’s 26 regional; directors who are under his control, outlining which cases he wants them to pass up to his office to be reviewed by the full board (AA, 10-31-17, p. 4).

The types of cases he cites in the short memo strongly indicate a change in policy direction and intent to undo several of the major shifts in policy that were made by the Obama-Era board.

There is just one catch: The current board will lose its Republican majority when Republican NLRB Chairman Phillip A. Miscimarra steps down at the end of December, which he previously announced he would do. However, if persuaded to do so, he could legally continue to serve beyond the end of his term until a new nominee is confirmed.

If he leaves by Dec. 31, at that point the normally five-member board will revert to a Republican and Democrat 2-2- tie, leaving the agency deadlocked.

Robb’s memo told the regional NLRB directors to send up cases involving findings of joint employer status, based on evidence of indirect – and sometimes simply potential control – over the working conditions of other companies’ employees, such as those of franchisees and staff leasing firms.

The new board also will scrutinize employer handbook rules that were found unlawful although they earlier were considered lawful and had been common in the workplace.

Robb also said he is seeking cases involving employees’ obscene, vulgar or other highly inappropriate conduct that the previous board said was protected by labor law.

He also intends to examine employees’ presumptive right to use an employer’s email system to engage in protected activities, like union organizing, and employees’ right to have a representative present during interviews that can result in discipline.

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