New NLRB General Counsel Sets New Tone For The "Trump Board"

11 December 2017 Labor & Employment Law Perspectives Blog
Author(s): Patrick J. McMahon

We are now almost a year into the Trump presidency, but we are still grappling with how the administration will address many issues throughout the country. To a certain extent we can never be sure of a clear path, as President Trump has not always taken consistent positions on policy issues. However, from time to time, the president’s appointees issue guidance that provides insight on how they will approach their new positions.  The National Labor Relations Board’s (NLRB) new general counsel did just that at the beginning of the month.

On December 1, 2017, NLRB General Counsel Peter B. Robb issued his first guidance letter in his new position. Before taking office, Robb worked in private practice as a management-side labor and employment attorney. He also served as a field attorney and chief counsel to NLRB board member Robert Hunter. In his first letter, Robb acknowledges the current uncertainty surrounding the NLRB, and offers this letter as a peek behind the curtain for how he will approach issues during his tenure as general counsel.

First, Robb made it clear that he intends to rely on existing laws regardless of his personal legal views, and that he does not intend to entertain new theories on cases that have already been fully briefed. Second, and in the interest of avoiding delays, the General Counsel will not be offering new views on cases pending in the courts without the court’s direction. Third, Robb believes cases involving significant legal issues should be submitted to the NLRB’s Division of Advice. He lays out the process for submitting such legal issues and also suggests what some of these “significant legal issues” could be. However, Robb stresses that this list is not exhaustive nor meant to indicate how the General Counsel would argue the case. Some of the issues identified in the letter include:

  • Common employer handbook rules found unlawful (e.g., rules prohibiting “disrespectful” conduct, no camera/recording rules, rules requiring employees to maintain the confidentiality of workplace investigations)
  • The “Purple Communications” finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 activities
  • Off-duty employee access to property
  • Conflicts with other statutory requirements (e.g., a finding that social media postings were protected even though the employee’s conduct could violate EEO principles)
  • Joint employer determinations
  • Successorship

Fourth, Robb said that typically new General Counsels identify novel legal theories they wish to explore through mandatory submissions to Advice, but he has not yet identified any. Finally,  Robb rescinded several memos previously issued by the General Counsel’s office in addition to some initiatives highlighted in previous Advice memoranda.

Robb is only in the first month of his appointment, and it may be some time before employers can fully appreciate the positions he will take on the issues outlined in his letter or otherwise. However, many anticipate that Robb will use certain cases to reverse some of the more controversial Board rulings during the Obama administration. Employers and practitioners should continue to monitor General Counsel guidance and Advice memoranda in the meantime.

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