The National Labor Relations Board’s new general counsel announced changes to worker rights approach in new memo.
During Obama’s presidency, the National Labor Relations Board passed a number of regulations to expand protection for employees who wish to unionize or organize in other ways to lobby for improvement to their working conditions.
Under the Trump administration, those measures are being rolled back to help employers. In a memo from last week, the NLRB’s new general counsel, Peter B. Robb, ordered board officials around the U.S. to consult his office on cases that involving worker rights that emerged out of the past eight years. That move effectively cancels the discretion of regional board officers to pursue cases against employers based upon previous rulings and policies.
Put simply, the measures passed under Obama are effectively on hold.
The NLRB is the independent federal agency that referees disputes between employers, workers and their unions. The organization’s general counsel plays a central role at the board and functions much like a prosecutor, deciding which cases to investigate and pursue when workers allege their rights have been violated. Robb was nominated by President Trump and confirmed by the Senate on Nov. 8.
Wilma Liebman, a former chairperson of the five-member board that adjudicates those cases, said it’s typical for a new general counsel to issue a memo requesting that certain cases be sent to Washington for advice, especially those involving recent precedents. Robb’s Democratic predecessor issued a similar memo when he came onboard. Still, Liebman said, she was surprised by the “sweeping” breadth of Robb’s memo and the speed with which it was issued after his confirmation.
“The direction is crystal clear,” Liebman said. “There is an agenda: Fewer workers will have fewer rights.”
Many of the precedents Robb cites in his memo relates to Section 7 of the National Labor Relations Act, which are the heart of collective bargaining law, guaranteeing workers the ability to band together and engage in “mutual aid and protection.” Through their rulings and legal guidance, the board nominees under Obama took a relatively expansive view of what’s considered legally protected activity by workers.
Robb’s outlook will likely to please employers rather than workers. His memo claimed that he would be rescinding seven “guidance memos” that were drafted by Democratic predecessors. These are memos that set parameters for board officials on how to interpret and enforce the law. He also claimed that board officials were required to seek his office’s advice on matters involving “cases over the last eight years that overruled precedent and involved one or more dissents” by board members.
Some of the precedents cited in his memo infuriated business groups, like the case known as Browning-Ferris. That board ruling made it easier for a big corporation to be deemed a “joint employer” alongside their subcontractors or franchisees. The change has helped workers and unions bring cases against a company like McDonald’s and not just against the individual franchisees who operate McDonald’s restaurants.
Other changes were not as high-profile, but could affect American workers who end up in disputes with employers. One Obama-era case outlined employees’ ability to use work emails in an attempt to organize a union or even discuss working conditions. Another case had addressed employees’ ability to record company meetings, including anti-union comments or speeches made by bosses.
It’s common for the labor board to act in ways deemed more friendly to employers than workers under a Republican administration. Prior to his nomination, Robb was a management-side attorney who represented employers and trade groups. During the 1980s he served as an attorney at the labor board.