The National Labor Relations Board’s top lawyer has opened several new fronts in his efforts to roll back Obama-era precedents favorable to workers and unions while recasting federal labor law more to employers’ advantage.
NLRB general counsel Peter Robb’s office urged the board in one case to adopt a standard for assessing employer arbitration agreements that would make them more resistant against worker challenges, according to case filings. His office also argued for rulings in three other cases that would weaken unions’ power during contract negotiations with employers, filings show.
These cases add to the list of Robb’s ongoing attempts to change board law. Other examples that await board rulings include arguments to remove labor law protections for workers’ litigation activities, loosen the agency’s standards for deferring to arbitration, stop workers from discussing workplace investigations, and prohibit unions from displaying the inflatable cartoon balloon known as Scabby the Rat at labor protests.
“He seems to be on a mission that’s really unprecedented,” said William Gould, a former Democratic chairman of the NLRB.
Robb, who was the lead attorney in the landmark Reagan-era case that resulted in the firing of thousands of striking air traffic controllers and the decertification of their union, arrived at the NLRB in 2017 with a long list of precedents he targeted for change. The veteran management-side lawyer had spent the previous two decades in Vermont, where he represented an elevator and escalator industry association.
In the first 18 months of his four-year term, Robb has turned up the heat on unions by changing board policy on policing unions while his appeals branch revived cases against organized labor that field staffers had previously dismissed. His office has also issued dozens of directives, including memos classifying Uber drivers as independent contractors and permitting an employer to fire a worker for complaining about being misclassified as a contractor.
But employers, unions, and workers have yet to feel the full effect of the Trump-appointed general counsel’s advocacy.
The Republican-controlled labor board has handed employers big wins during Robb’s tenure by overturning prior decisions on workplace rules, employment classification, and so-called micro-unions. But the general counsel’s office weighed in on those cases before Robb’s arrival.
It’s difficult to predict when the board will rule in the cases in which Robb has advocated for overturning earlier rulings, Gould said. What’s clear, he said, is that Robb wants to push these cases as rapidly as possible in hopes of a “fundamental reevaluation” of the National Labor Relations Act.
Robb has faced criticism that he’s prosecuting an anti-union agenda that goes beyond the typical pro-management stances of his Republican predecessors. But some management lawyers say he’s restoring balance to federal labor law after pro-union excesses of the Obama administration.
When Democrats last controlled the board, then-general counsel Richard Griffin did the same thing Robb is doing now, said Michael Lotito, an attorney and lobbyist at the management-side firm Littler Mendelson. All general counsels are responsible for getting cases before the NLRB that they think raise important policy issues or issues where case law should be clarified, amended, or overturned, he said.
And there’s no reason to think Robb will stop, Lotito said.
“Dick Griffin didn’t stop doing what he was doing until he left the building,” Lotito said. “I imagine Peter won’t stop doing his job until he leaves the building.”
The NLRB and general counsel’s office declined to comment, an agency spokeswoman said.
Arbitration Agreement Framework
One of the banner cases from the Obama-era NLRB was its 2014 decision in Murphy Oil, which said class-action waivers in workers’ arbitration agreements violate the NLRA. Although the U.S. Supreme Court overturned that holding in its May 2018 Epic Systems v. Lewis ruling, the board’s decision contained a secondary finding that Robb has set his sights on.
In Murphy Oil, the board ruled that the gas station company’s arbitration agreement violated labor law because it could make a worker think he or she couldn’t file charges with the NLRB. The agency’s regional director in San Francisco issued a complaint against a nursing home in Sacramento in October 2018 for using such an arbitration pact.
But earlier this year, Robb’s office asked the board to dismiss the complaint—effectively countermanding the regional director—because the arbitration agreement used by Windsor Care Center of Sacramento has a separate clause that says workers can still bring cases to the NLRB.
The office’s brief also offered a set of six principles for the board to use when analyzing whether arbitration agreements run afoul of Section 7 of the NLRA, which protects workers’ group activity to improve employment conditions. That guidance applies the NLRB’s framework for deciding whether workplace rules are lawful from its 2017 ruling in Boeing to different types of arbitration pacts.
Generally speaking, the board should review an arbitration agreement’s language “to determine whether there is an actual, as opposed to hypothetical, interference with Section 7 rights,” according to Robb’s office.
The union that challenged the agreement said it’s at best ambiguous, rendering it coercive and unlawful under board precedent. The agreement’s defects aren’t fixed by the separate clause that appears at the bottom of the third page, where employees aren’t likely to see it, the union said in its brief.
Union Workplaces Without Contracts
The GC’s office has also advocated for changes to board law in three cases specific to unionized workplaces in periods when a labor deal has either expired or an initial contract hasn’t been reached. The office asked the board to:
- remove employers’ obligation to deduct dues from workers’ paychecks and send that money to their union after their current collective bargaining agreement expires, absent specific contractual language requiring that the duty continues;
- allow workers to revoke their authorizations to have dues automatically deducted from their paychecks when there’s no contract in effect, rather than just during the limited time window that’s currently available;
- permit employers to stop making pension contributions when their collective bargaining agreement expires and pension fund documents indicate the payments should stop; and
- lift the bar against employers seriously disciplining workers represented by a newly formed union before bargaining over an initial labor deal.
If the board adopts the positions taken by Robb’s office, then employers would get more leverage during contract negotiations for new labor deals, union lawyers said.
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