Wednesday, December 6, 2017

Newly Appointed NLRB General Counsel and the Changes that Follow

Late last week, Peter Robb, the National Labor Relations Board’s new General Counsel (“GC”), issued a memorandum identifying the types of charges which should be submitted to his office for advice.  As the new GC, Robb has significant authority to establish new NLRB priorities and initiatives.

In his memorandum, Robb identifies examples of cases which should be submitted for advice, including certain Obama-era decisions.  He states, “[e]xamples of Board decisions that might support issuance of complaint, but where we also might want to provide the Board with an alternative analysis...” Those examples, in part, include the following:
  • Concerted activity for mutual aid and protection, such as “[f]inding no loss of protection despite obscene, vulgar, or other highly inappropriate conduct”
  • Purple Communications, which permits corporate e-mail to be used for union-organizing and avenue to complain about work;
  • Common employer handbook rules, such as rules banning “disrespectful” behavior, “[n]o camera/recording rules, rules regarding confidentiality of workplace investigations;
  • Decisions which conflict with other statutory requirements, such as determining “racist comments by picketers [were] protected…because they were not direct threats” and “social media postings protected even though employee’s conduct could violate EEO principles;” and
  • Decisions regarding “Off-duty employee access to property.”

Robb also states that, although he himself has not yet decided on “any novel legal theories” he wishes to explore through mandatory submissions via advice, he nonetheless will rescind memorandums issued by past GCs.  Such rescissions include:
  • GC 17-01 (General Counsel’s Report on the Statutory Rights of University Faculty And Students in the Unfair Labor Practice Context)
  • GC 16-03 (Seeking Board Reconsideration of the Levitz Framework)
  • GC 15-04 (Report of the General Counsel Concerning Employer Rules)
  • GC 13-02 (Inclusion of Front Pay in Board Settlements)

Robb will similarly rescind initiatives seeking to do the following:
  • Extend Purple Communications to communications such as internet and phones;
  • Apply a different standard, set forth by case-law, in non-union settings; 
  • Overturn the Board’s Tri-cast doctrine (regarding employers ability to make statements to management during organizing campaigns, after a union representative has been selected) and Oil Capitol (regarding burden of proof for salting discriminates); and
  • Argue that “an employer’s misclassification of employees as independent contractors, in and of itself, violates Section 8(a)(1).”

While changes in the NLRB are not immediately relevant to public sector employers, we will continue to report on NLRB updates.  The public sector equivalents of the NLRB in Illinois, the Illinois Public Labor Relations Board and the Illinois Educational Labor Relations Board use NLRB precedent in deciding public sector cases in Illinois.