Vice President, Labor Policy, U.S. Chamber of Commerce
December 08, 2017
The National Labor Relations Board (NLRB) has a new sheriff in the form of Peter B. Robb, who was sworn in as the agency’s General Counsel on November 17. It did not take long for him to signal that he intends to scrutinize the way the NLRB has been doing things for the last several years. Just two weeks after taking office, on December 1 Robb circulated a “Mandatory Submissions to Advice” memorandum that laid out his plans to revisit many of the ill-conceived initiatives of the Obama administration.
As observers of labor policy know, the NLRB’s General Counsel is responsible for bringing unfair labor practice charges and has wide discretion to shape what issues the Board will address. For the last several years, Robb’s predecessors used that discretion to advance cases that allowed the Board to overturn decades of precedent and essentially rewrite the law to suit their own anti-employer agenda.
That Robb would have a different take on numerous policy issues does not come as a surprise, and his memo outlines a wide array of those policies. That list is a sign that he wishes to address the massive overreach of the Obama-era NLRB and restore the appropriate balance to labor law.
To that end, Robb ordered regional offices to submit for review “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.”
He also ordered regions to submit cases for review prior to filing a brief or statement of position with the Board in “cases where complaint issuance is appropriate under current Board law, but where we might want to provide the Board with an alternative analysis.”
Regarding the latter category, Robb listed fifteen topics in which a case would meet the criterion of wanting to provide an “alternative analysis.” They include: concerted activity, employee handbook rules, access to employer email systems, work stoppages, off-duty access to a workplace, conflicts with other statutes, so-called Weingarten rights during disciplinary interviews, disparate treatment of represented employees in contract negotiations, joint employer, successorship, unilateral changes to past practice, duty to bargain over discipline without an initial collective bargaining agreement, providing witness statements to a union, dues check-off, and monetary remedies.
Robb also rescinded several previous General Counsel memos and discarded the initiatives they had laid out, including seeking to provide access to a variety of electronic systems other than email under Purple Communications, seeking to overturn a precedent regarding the legality of certain statements by employers to employees during organizing drives, and arguing that alleged misclassification of employees as independent contractors is an unfair labor practice, among several other initiatives.
Robb’s memo to the NLRB regional staff stands as a welcome sign that the aggressively pro-union agenda of previous years is finally over, and that employers may see balance and common-sense return to labor law.