Summary
The federal labor board could soon be thrust into the ongoing national conversation about workplace sexual harassment.
Broadly stated, the National Labor Relations Board’s existing case law says a worker’s individual harassment complaint should be considered concerted activity protected by federal labor law so long as the worker tries to enlist her co-workers’ help in filing the complaint. The Democratic majority on the board during that 2014 ruling argued that this meets the law’s requirement for “mutual aid” because an individual harassment complaint can improve the workplace for others. The decision overturned a 10-year-old precedent set by the board during the tenure of President George W. Bush.
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Robb and the board “will have to be careful about stepping into a hornet’s nest” in his answers to the senators and deciding whether to reconsider the issue, former NLRB chairman William Gould (D) told Bloomberg Law.
“The 2004 decision” that was overruled in 2014 “said that sexual harassment didn’t happen with great frequency,” Gould noted.One of the questions in the senators’ letter asks Robb: “Do you believe that workplace sexual harassment is a rare occurence?” The lawmakers also want to know if Robb will base any new approach to the issue on the belief that sexual harassment on the job is infrequent.
The new general counsel “is kind of caught between a rock and a hard place—either he’s got to answer the questions directly or risk associating himself with the approach of the 2004 board, which is now going to be viewed as a vestigial relic of a bygone era,” Gould said.
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Both Gould and former NLRB special counsel Celine McNicholas said it was board policy during their terms to respond as accurately and completely as possible to any inquiry from lawmakers. McNicholas also held the post of director of congressional and public affairs and served during the Obama administration.
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The senators also asked why Robb issued the memo after a “mere nine workdays” in the GC post after testifying before the members of the Committee on Health, Education, Labor and Pensions that he isn’t entering the position with any particular ideological agenda, Gould noted.
“The problem with the memo is broader in scope in terms of the question of how did you acquire these views in nine days as a general proposition,” Gould said. “But it has particularly dramatic impact given the heightened concern with sexual harassment and how that issue has emerged.”
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