National Labor Relations Board General Counsel Peter Robb today softened his policy on pursuing negligence charges against unions.
In a memo to regional directors, Robb wrote that staff need not file negligence charges so long as a union is “acting reasonably.” Robb suggested more leniency than he did in an earlier memo in October that instructed field staff to pursue fair representation violations against unions if they failed to respond to members’ grievance inquiries or lost track of cases. The National Labor Relations Act requires unions to represent members equally, but the general counsel has some discretion over what that means in practice.
In the past, the NLRB rarely punished unions that lost track of a case or failed to keep in touch with a member about a grievance. But in the earlier memo, Robb wrote that staff should require unions to produce “established, reasonable procedures” for tracking cases if they claimed negligence.
In today’s follow-up memo, Robb said field offices need only seek evidence if they suspect a pattern of misconduct.
“Labor policy is not served by requiring a union to present a detailed defense of its decision to not pursue a grievance, or its decision to abandon a grievance, as long as the union is acting reasonably,” Robb wrote. Field offices, he said, “need not look behind a union’s assertion of a reasonable decision not to pursue grievances unless there is evidence that those decisions were made in bad faith or involved gross negligence, or where there could be no reasonable basis for the union’s decision.”
Sen. Elizabeth Warren (D-Mass.) on Monday asked NLRB Chairman John Ring to direct board member William Emanuel to recuse himself from a case that could make it harder for workplaces to organize.
In a letter dated Sept. 17, Warren argued that Emanuel should not take part in a challenge to the Obama-era Purple Communications, Inc., which allowed labor unions to use work email addresses when organizing. The board signaledlast month that it will reconsider that decision in a case involving Caesar’s Entertainment Corporation.
Warren — who signed the letter with Sens. Kirsten Gillibrand (D-N.Y.), Cory Booker (D-N.J.), Tammy Baldwin (D-Wis.), and Mazie Hirono (D-Hawaii) — said Emanuel should sit out Caesar’s Entertainment due to a conflict involving his former law firm.
“The fact that Member Emanuel participated in the Notice and Invitation to File Briefs on a matter from which he should be recused is an ominous sign, indicating that the board has not — and moving forward, may not — follow appropriate ethics rules and precedents in this case,” the senators wrote.
The congressional Democrats cited a recent ethics dust-up concerning Hy-Brand Industrial Contractors, a decision that narrowed the circumstances under which franchisers could be held liable for labor violations committed by their franchisees and contractors. After that decision, Emanuel was scolded by the NLRB inspector general for participating even though his former law firm, Littler Mendelson, had been involved in Browning-Ferris Industries, a case whose 2015 decision Hy-Brand overturned. The inspector general found the cases were linked because Littler’s client could benefit from Emanuel’s involvement. The board ultimately vacated Hy-Brand in deference to the IG’s ethics concerns and instead proposed overturning Browning-Ferris in a rule.
Emanuel’s defenders have complained that the inspector general used an unusually strict conflict of interest standard to criticize Emanuel, one that left him open to endless accusations of conflicts and to political attacks. NLRB General Counsel Peter Robb said he disagreed with the inspector general’s reasoning.
“It’s premised on slowing down the decision-making process,” said Roger King, senior labor and employment counsel for the HR Policy Association.
Littler Mendelson, a large management-side firm with thousands of clients, isn’t a party in Caesar’s Entertainment. But the firm was involved in Purple Communications, and the Democratic letter’s signatories said that creates a similar conflict of interest for Emanuel. Purple Communications is pending appeal in the 9th Circuit.
The letter cited President Donald Trump’s 2017 executive order barring members of the administration from participating “in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.”
An NLRB spokesperson declined to comment but said Ring would respond to Warren’s letter.
Per POLITICO, the National Labor Relations Board will propose a joint employer rule on Friday that would reverse the Obama-era Browning-Ferris standard, handing a major win to businesses.
The proposed rule addresses the circumstances under which franchisors can be held liable for labor violations committed by franchisees and contractors. President Donald Trump’s NLRB sought to reverse Browning-Ferris last year, but its efforts were thwarted by ethics conflicts with one of Trump’s appointees, William Emanuel.
In a written statement, the board suggested that the proposal would revert to the pre-Obama standard.
“Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine,” the board said.
The board’s three Republican members favored the change, while Democrat Lauren McFerran dissented. The fifth seat remains vacant.