National Labor Relations Board (NLRB) General Counsel Peter Robb, an appointee of former President Donald Trump, was ousted from his post on Jan. 20. Robb’s term was set to expire on Nov. 17.
The NLRB general counsel makes decisions as to which cases the board will prosecute. The board oversees union elections and upholds workers’ rights to organize.
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The Biden administration asked Robb to resign on Jan. 20 but Robb refused. In a letter to the White House, he called the request “unprecedented since the nascence of the National Labor Relations Act” and said his termination “would set an unfortunate precedent.” Major unions had urged Biden to fire Robb and welcomed Robb’s removal, hailing it as a timely departure from policies they deemed hostile to workers and unions. But Rep. Virginia Foxx, R-N.C., said the request for Robb’s resignation was “inappropriate” and an “outrageous ultimatum.”
(The Washington Post)
Robb Targeted Obama NLRB Decisions
When he was the new general counsel for the NLRB, Robb signaled in a Dec. 1, 2017, memo an interest in overturning more than two dozen Obama board decisions. Robb sought in part to clarify that an employer may lawfully terminate an employee who refers to his or her supervisor on Facebook in outrageously obscene language. He also sought to restrict the use of employers’ e-mail systems for work only. In addition, Robb urged the board to prohibit off-duty employees from picketing on an employer’s property directly in front of its doorways. And he sought for employers to have the right to suspend or terminate an employee before entering into a collective bargaining agreement without bargaining with a newly certified union over the decision.
NLRB Gave Employers More Leeway to Fire Workers for Profane Outbursts
Robb’s initiatives resulted in the NLRB scaling back some Obama board decisions. For example, the NLRB ruled in 2020 that employers should have more flexibility to discipline or fire employees for abusive conduct when they are engaging in otherwise protected activity under federal labor law.
NLRB Afforded Employers More Freedom with Employee Handbooks
Under Robb, employers came to expect that the NLRB would subject employee handbooks to far less scrutiny following his issuance of a 2018 memo approving common handbook provisions. These wide-ranging provisions covered such subjects as civility standards, insubordination rules and prohibitions on taking pictures in the workplace. Robb outlined three categories of rules: rules that generally are lawful, provisions warranting individualized scrutiny and rules that are unlawful. Most of the rules mentioned in the memo were deemed to usually be lawful.
McFerran Named Chair of the NLRB
Three of the four members of the NLRB are Republican. President Biden “will be able to move to fill the one vacant seat immediately,” said Eve Klein, an attorney with Duane Morris in New York City. Biden already has named Lauren McFerran, the sole Democrat member of the NLRB, as chair of the board. The president also will be able to nominate a new NLRB general counsel, who is confirmed by the Senate. “However, he will have to wait until at least Aug. 27, 2021, when member William Emanuel’s seat expires, to add a second Democratic appointee to attain majority control of the board.”