During the Barack Obama years, the National Labor Relations Board took a broad view of worker rights, expanding protections for employees who try to join a union or come together to improve their working conditions.
Under the Trump administration, those rights are being reined in to help out employers.
In a memo dated Friday and obtained by HuffPost, the NLRB’s new general counsel, Peter B. Robb, orders board officials around the country to consult his office on cases that involve precedents set on worker rights during the last eight years. The move effectively strips away the discretion of regional board officers to pursue cases against employers based upon Obama-era rulings and policies.
Put simply, the rights that were expanded under Obama are pretty much on hold.
The NLRB is the independent federal agency responsible for refereeing disputes between employers, workers and their unions. The general counsel plays a critical role at the board and functions as a quasi-prosecutor, deciding which major cases to investigate and pursue when workers claim their rights have been violated. Robb was nominated by Trump and confirmed by the Senate on Nov. 8.
Wilma Liebman, a former Democratic chairwoman of the five-member board that rules on those cases, said it is standard for a new general counsel to issue a memo ordering certain cases to be sent to Washington for advice, particularly 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 involve what’s known as Section 7 of the National Labor Relations Act. Those rights are at 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 is much more likely to please employers. In his memo, he said he would be rescinding seven “guidance memos” that were crafted by his Democratic predecessors. These are memos that advise board officials on how to interpret and enforce the law. He also said it was mandatory for board officials 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 cases were lesser known but could affect workers around the country who end up in disputes with their employers. One Obama-era case clarified employees’ ability to use their work emails to try to organize a union or talk about working conditions. Another case outlined employees’ ability to record company meetings, including anti-union speeches made by bosses.
It’s common for the labor board to become more friendly to employers than workers after a Republican wins the White House. Until his nomination, Robb was a management-side attorney who represented employers and trade groups. He served as an attorney at the labor board during the early 1980s.
Read the memo:
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