Peter Robb is President Trump’s new General Counsel for the National Labor Relations Board (NLRB). He was confirmed by the Senate in November. The General Counsel is the top lawyer guiding NLRB enforcement activity. Direction from the General Counsel’s office influences how NLRB Regional Directors enforce the law and has a significant impact on legal issues facing union, as well as non-union, companies. In a memo issued on December 1 to all of the NLRB Regional Offices around the country, Mr. Robb signaled his intention to systematically change many of the more controversial labor law enforcement initiates pursued by the NLRB during the Obama administration.
Previous G.C. advice memos rescinded
In his Dec. 1, 2017 General Counsel Memo (GC Memo) Mr. Robb specifically rescinded seven advice memoranda issued by his predecessor, including GC 15-04, an extensive memo addressing various employer handbook rules. GC 15-04 memo has been the basis in recent years for the NLRB finding many relatively common employer handbook rules illegal. General Counsel Robb also wrote that certain initiatives in previous G.C. advice memoranda will be considered no longer in effect. Notable among those are previous efforts by the NLRB: to expand employee rights to use company electronic systems for union organizing: to expand employees’ right to insist on a union representative during disciplinary interviews to non-union workplaces; and to have misclassification of employees as independent contractors be treated, in and of itself, as an unfair labor practice.
Efforts to impact NLRB case law
The General Counsel influences what cases go to hearings in front of NLRB Administrative Law Judges and those that reach the full NLRB for case decisions. The General Counsel also determines what arguments will be made in cases being heard. In the December 1 GC memo, Mr. Robb makes clear his intention that certain cases decided during the Obama administration should be revisited. He has directed that new cases involving issues decided by the NLRB “in the past eight years” that changed previous NLRB precedent and had at least one dissenting opinion should be brought to the attention of his office. The Office of the General Counsel will then provide “appropriate guidance on how to present the issue to the board.” The clear message is that the General Counsel’s Office will tee some of these cases up to be revisited by the current Republican-majority NLRB and possibly reversed.
Of particular note is the reference in the GC memo to cases involving certain “common employer handbook rules” which, in recent years, have been found unlawful. Those include rules prohibiting “disrespectful” conduct, rules prohibiting employee use of employer trademarks and logos, blanket prohibitions on use of cameras or recording in the workplace and broad rules protecting confidentiality. The GC Memo also signals clearly that the General Counsel feels that the decision in the Board’s Purple Communication case, finding that employees have a broad right to use employer electronic communication systems for personal reasons, including union organizing, should be reviewed. We wrote about Purple Communication here. Also significant is the General Counsel’s signal that he favors reviewing and changing the current very broad NLRB standards for finding “joint employment,” which would support finding joint employment in most temporary staff arrangements.
The challenge for companies
It is easy to see that labor law enforcement will change in coming months and years. The challenge for companies is deciphering existing NLRB guidance from what is anticipated for the future and trying to stay in compliance along the way. Companies are well-advised to consult legal counsel to stay in touch with this changing landscape.