New NLRB General Counsel and Board Signal Agenda

Following his nomination by President Donald Trump and confirmation by the Senate, Peter Robb was sworn in as the next general counsel of the National Labor Relations Board on Nov. 17, 2017. The board also added two new members, creating a Republican majority for the first time since the Bush administration. 

As general counsel, Robb sets the direction of the NLRB, and he wasted no time identifying recent board decisions that he believes should be revisited by the agency's Office of Advice and ultimately by the board. In his General Counsel Memorandum 18-02, Robb identified a number of Obama-era cases that had overruled established board precedent and that are now subject to re-evaluation by the NLRB, including the following:

Obama-era cases finding concerted activity for mutual aid and protection, based on Section 7 of the National Labor Relations Act. Robb identified recent board precedent finding that employee conduct was for "mutual aid and protection" where only one employee had an immediate stake in the outcome. He also pointed to recent board cases finding there was no loss of Section 7 protection despite the employee's use of obscene or vulgar language or other inappropriate conduct. For example, the GC Memorandum called into question the board's decision in Pier Sixty, LLC (2015) that the employee's Facebook posts, which made appallingly obscene remarks about the supervisor and the supervisor's family, were not so abusive as to lose the protection of the NLRA. 

Recent cases finding common employer handbook rules unlawful. Robb questioned recent board cases finding that various customary handbook policies interfered with Section 7 protected rights, including: 

• Rules prohibiting "disrespectful" conduct
• Rules prohibiting use of the employer's trademarks and logos
• Rules prohibiting use of cameras and recording in the workplace
• Rules requiring employees to maintain the confidentiality of workplace investigations

Robb rescinded GC Memorandum 15-04, the expansive Report of the General Counsel Concerning Employer Rules, which made the drafting of employee handbooks an adventure in self-restraint.

As if on cue, in its Boeing decision (Dec. 14, 2017), the new board upheld Boeing's policy against cameras in the workplace, citing the company's federally mandated security protocol and other business justifications for the company's no-camera rule. In the Boeing ruling, the new board adopted a balancing test for evaluating facially neutral personnel policies that will weigh both the potential impact on employees' protected rights and the employer's business justifications, bringing common sense back into the equation.

Recent cases expanding the right of employees to use the company's email system for Section 7 activities. Robb would reconsider the Purple Communications (2014) decision, holding that employees have a presumptive right to use their employer's email system to engage in Section 7 activities and to communicate about union issues. He has also terminated the NLRB's policy initiatives to extend Purple Communications to allow employee use of other company electronic systems, such as internet, phones and instant messaging for NLRA-protected activities.

Obama-era cases expanding employees' off-duty access to company property. Robb raised questions about the correctness of cases that applied the Republic Aviation rule to picketing by off-duty employees, in which the decisions improperly equate picketing with hand-billing despite picketing's greater impact on the company's legitimate interests. One egregious example is a 2016 board decision allowing picketing in front of doorways at a health care facility, notwithstanding obvious patient care concerns. Robb noted recent cases finding that off-duty access to a facility must be permitted unless employees are excluded for all purposes, including where a supervisor expressly authorized re-entry.

Cases that are in tension with other statutory requirements. Robb cited, as an example, a 2016 decision wherein the board found that racist comments by picketers were nonetheless protected because the racist comments were not "direct threats." He further questioned a 2015 ruling that an employee's social media postings were protected even though the employee's conduct violated EEO principles expected of all employees.

Recent cases that expanded Weingarten rights during employee interviews. Robb would revisit 2015 board cases that expanded the range of permissible conduct by union representatives present during company investigations and that applied the Weingarten rule in the drug testing context. Robb rescinded NLRB policy initiatives that would have overturned the IBM decision so as to apply Weingarten rights (to have a coworker present during investigatory interviews) in non-union settings.

The "joint employer" test. The board’s Browning-Ferris decision in 2015 departed from past precedent and found that joint employer status could be established based on evidence of "indirect" or "potential control" over the working conditions of another employer's employees without finding evidence of actual control over those employees. The new board has signaled its intent to overrule the Browning-Ferris decision and will likely revert to the standard in place before Browning-Ferris and require "direct control" over employees before applying the joint employer rule.

Successor doctrine. Both the general counsel and Republican board members want to re-evaluate board precedent regarding "successorship," particularly as to when a buyer of the business would be required to recognize and bargain with a predecessor's employees before setting initial terms and conditions of employment. In Walden Security, Inc. (2018), Republican board members expressed interest in expanding the circumstances in which a buyer may unilaterally set its initial employment terms without first bargaining with the predecessor's union.

Dues check-off. In Lincoln Lutheran of Racine (2015), the board found that a dues check-off obligation survives the expiration of the collective-bargaining agreement (on which the dues check-off right is premised). Robb intends to revisit Lincoln Lutheran, presumably so that dues check-off would again be on the table and subject to bargaining during negotiations for a new agreement.

Election rule. Finally, on Dec. 12, 2017, the new board initiated rulemaking and opened public comment on whether the board should modify or rescind altogether the 2014 "quickie election" rule. This rule has greatly reduced the amount of time between a union's petition and a secret ballot election, narrowing the window on average from 38 days down to 23 days. A shortened election period favors unions because the union generally has already campaigned employees for a significant time period before filing the election petition, placing many employers in a reaction mode and starting from scratch with its own messaging.

Although the general counsel and Republican members have signaled that significant change from Obama-era precedent is in the offing, employers should be mindful that existing board precedent will remain the law until the board formally reverses particular decisions in future cases. The NLRB will be busy in the coming months, and Robinson Bradshaw's Employment and Labor Practice Group will continue to monitor labor law developments. Please contact us for more information.