Changing the guard: NLRB GC signals changes to come

December 04, 2017

Employment Law Alert

Author(s): Kimberly K. Harding, Tara E. Daub, David A. Tauster

The NLRB’s newly confirmed General Counsel just released a memo signaling his intention to reexamine many highly controversial decisions issued by the Obama-era Board. This alert discusses what employers can expect from the NLRB’s new General Counsel.

Peter Robb, the recently appointed and newly confirmed General Counsel for the National Labor Relations Board (“NLRB”), wasted no time in telegraphing the direction he intends to guide the agency over at least the next few years. In a memo released late last week (See NLRB Memorandum GC 18-02 here), Robb, a former private practitioner, as well as a former NLRB attorney who served in various capacities, strongly signaled his intention to reconsider many highly controversial Board decisions issued during the Obama-era.

The NLRB is governed by a five-person board (“Board”), which reviews decisions of administrative law judges, and a General Counsel, who acts as its lead prosecutor. Although the General Counsel position is independent from the Board, and this memo does not change any extant law, its insights into Robb’s positions on various labor issues are telling as to the NLRB’s future direction, given that, as General Counsel, he is now responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB’s field offices in the processing of cases.

In his memo, Robb began by observing that “the last eight years have seen many changes in precedent, often with vigorous dissents.” He then specifically stated that all cases involving “significant legal issues” should be submitted to the General Counsel’s office for advice. He defined “significant legal issues” as “cases 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.” Robb then cited the Board decisions decided under the prior administration on the following issues as examples:

  • Concerted activity for mutual aid and protection
  • Common employer handbook rules
  • The right to use employer email systems to engage in Section 7 activities
  • Work stoppages
  • Off-duty employee access to property
  • Conflicts between the National Labor Relations Act and other statutory requirements
  • Weingarten rights
  • The disparate treatment of represented employees during contract negotiations
  • Joint employment
  • Successorship
  • Unilateral changes after contract expiration consistent with past practice
  • Establishment of the duty to bargain before the imposition of discretionary discipline, where the parties have not executed an initial labor agreement
  • The duty to provide witness statements to union
  • Dues checkoff
  • Remedies for statutory violations

In addition, Robb expressly rescinded seven of former General Counsel Richard Griffin’s memoranda—including those concerning employer handbook rules, the statutory rights of university faculty and students in the unfair labor practice context, the Levitz framework for determining whether an incumbent union has lost majority support, the inclusion of front pay in Board settlements, the Collyer standard for deferral to arbitration, and intermittent and partial strikes. Likewise, Robb expressly terminated Griffin’s initiatives to (1) extend Purple Communications to other employer electronic systems, (2) overturn the Board’s Tri-cast doctrine regarding the legality of employer statements to employees during organizing campaigns that they will not be able to discuss matters directly with management if they select union representation, (3) overturn Oil Capitol and put the burden of proof on the employer-respondent to demonstrate that a salt/discriminatee would not have remained with the employer for the duration of the claimed back pay period, (4) argue that an employer’s misclassification of employees as independent contractors, in and of itself, violates Section 8(a)(1) and (5) apply Weingarten in nonunion settings.

While the memo’s directives will likely result in the reshifting of Board law that dramatically changed over the past eight years, the changes will develop over a period of time to come. Furthermore, for employers with fully briefed cases currently pending before the Board, this news is bittersweet. Robb stated that all decisions would be based on existing law, regardless of whether he agrees with the underlying policy, and that no new theories would be presented on cases that have already been fully briefed to the Board. Thus, while current cases will not be delayed by Robb’s appointment, they also are unlikely to be directly shaped by his positions.

Robb’s memo is consistent with our earlier predictions that many of the Obama Board’s most contentious precedents were likely to be undone or pared back.[1] The swift manner in which Robb has rescinded prior guidance in this memo and the clear signal he has given that many other issues will not receive the same attention or be prosecuted in the same manner during his tenure suggest that Robb has considered the priorities and set the groundwork for effecting those changes in the months and years ahead.

  1. See our prior alert, “Trumping U.S. labor and employment law. [Back to reference]

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