The most important person in many federal agencies is not the head of the agency, but the agency’s General Counsel. For example, it is the General Counsel of the NLRB and the EEOC that decide what cases to prosecute, and what theories to use. Admittedly, agency tribunals themselves determine the outcome of cases, but the cases never get to the agency for determination without a prior decision made by the General Counsel.
No further proof of this is necessary other than to witness the confirmation on November 8, 2017 of Peter Robb as General Counsel of the NLRB. Robb is a former management-side labor attorney from Vermont. After being appointed, on December 1, 2017 he issued a "Mandatory Submissions to Advice Memorandum" (18-02), requiring certain issues to be submitted to Washington for review involving "significant legal issues." These include cases decided over the last eight years that overruled precedent and involved one or more dissents, cases involving issues that the Board has not decided, and any other cases that the Region believes will be of importance to the General Counsel. The list of examples in the Memo include issues such as concerted activity for mutual aid and protection (only one employee, obscene or vulgar language, etc.); common employer handbook rules found unlawful ("disrespectful conduct," employer trademarks and logo, no camera/recording rules, confidentiality rules, broad rules allegedly "chilling" union or concerted activities); Purple Communications (right to use employer's email system); Quietflex (finding work stoppages protected in controversial circumstances); off-duty employee access to property; conflicts with other statutory requirements (racist comments by picketers, finding social media postings protected even though they could violate EEO principles); Weingarten (expanding range of permissible conduct by union representatives in the workplace, particularly in the drug-testing context); disparate treatment of represented employees during contract negotiations (requiring raises to be instituted during initial contract bargaining); joint employer (indirect or potential control over another's employees); successorship; unilateral changes consistent with past practice (whether the employer has to bargain over such changes after contract expiration); Total Security (bargaining over imposing discretionary discipline during negotiations for initial CBA); duty to provide witness statements to union; dues check-off (whether it survives expiration of the CBA); and remedies for violations.
In addition, newly appointment General Counsel Robb has rescinded seven earlier General Counsel reports and memoranda (including those concerning employers' rules and their chilling effect on union and other concerted activities). Several initiatives set out in prior Memoranda are no longer in effect, including arguing that the employer's misclassification of employees as independent contractors, in and of itself, violates the Act. An NLRB administrative law judge has issued a ruling supporting the former General Counsel’s theory that misclassification of employees alone violates the NLRA. This case involved drivers who move shipping containers between port facilities and transportation hubs around Los Angeles. Intermodal Bridge Transp., 21- CA-157647 (11/28/17).
As this newsletter was going to press, the three-member temporary Republican majority (Chairman Miscimarra’s term expires on December 15, 2017) was issuing several extremely important decisions overruling certain Obama-era precedents that themselves overturned established NLRB precedents, including the joint-employer rules, the "micro-unit" issues, certain handbook policy issues, and others.
