By Nelson Cary and Lauren Sanders
Just a few months after the NLRB became majority Republican, there are early signs that the agency may be taking a new direction in 2018. Peter Robb, the NLRB’s new General Counsel, sent a memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers in early December.
In his memorandum, which followed a practice that prior General Counsels utilized, Robb indicated that he might be inclined to offer the NLRB with “an alternative analysis” of existing case law, including:
- concerted activity for mutual aid and protection;
- common employer handbook rules that the Obama NLRB had found unlawful;
- employee access to employer email systems to engage in Section 7 activities;
- work stoppages;
- off-duty employees’ access to property;
- Weingarten rights;
- disparate treatment of represented employees during contract negotiations;
- joint employer status;
- successorship;
- witness statements;
- dues check-off; and
- remedies.
In all likelihood, this “alternative analysis” will be a theory that seeks reversal of earlier precedents, particularly those from the Obama NLRB era, in the foregoing areas. The General Counsel was careful to note that this list is not exhaustive.
Robb also rescinded several memoranda from the prior General Counsel and decided that the General Counsel’s office will no longer seek to:
- allow employees to use employer electronic systems to engage in Section 7 activities;
- prevent employers during organizing campaigns to say to employees that they will not be able to discuss matters directly with management if they select union representation;
- require the employer to show that a salt would not have remained with the company for the duration of the backpay period;
- argue that a misclassification of employees as independent contractors violates Section 8(a)(1); and
- apply Weingarten in non-union settings.
While the General Counsel doesn’t decide what the law is, he does decide which cases get prosecuted. Thus, the enforcement shift the memorandum signals could ultimately lead to the NLRB’s pendulum swinging increasingly in the direction of employer-friendly outcomes in the coming years. At the very minimum, the chief “prosecutor” of NLRA violations will at least not be looking to expand the law in ways that are problematic for employers. Check back with us as we continue to provide updates on the Trump NLRB.