What Could the New NLRB General Counsel Mean for Employers?

By Amelia J. Holstrom - Skoler, Abbott & Presser, P.C.

December 13, 2017

For the last eight years, the Obama-era National Labor Relations Board has issued decisions that have shocked and frustrated employers.  For example, it stated that employees could use company e-mail for organizing efforts and other non-business purposes; expanded the definition of joint employer which exposed more employers to unionization; instituted the “Quickie Election” Rule, which put employers at a severe disadvantage in Union elections; repeatedly scrutinized employee handbooks; prohibited employers from requiring that investigations be kept confidential absent specific circumstances;  and expanded what constituted concerted protected activity under the National Labor Relations Act, just to name a few.

The tides, however, might be turning.  On November 17, 2017, Attorney Peter Robb was sworn in as General Counsel at the NLRB.  As General Counsel, he will play a key role in setting the NLRB’s agenda.

In one of his first acts as General Counsel, he issued a memorandum to all Regional Directors, Officers-in-Charge, and Resident Officers of the NLRB. The memorandum, the subject of which read “Mandatory Submissions to Advice,” seems to signal that General Counsel Robb and the three Republican members sitting on the five-member Board may seek to reverse many of the decisions made by the Obama-Board over the last eight years.  Among other things, the memorandum indicated that all matters involving “significant legal issues,” which include “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,” should be submitted to the General Counsel for Advice.  The memorandum notes that the Advice will “provide appropriate guidance on how to present the issue to the Board” and in appropriate cases provide the Board with an alternative analysis to that of most recent decisions under the Obama-Board.   Specifically, the General Counsel identified several areas where the General Counsel might want to provide the Board with an alternative analysis, including  but not limited to, cases involving: concerted protected activity for mutual aid and protection; employer handbook rules; employee use of email for unionization and other non-business purposes; and joint employer theories.

The General Counsel’s memorandum also rescinds several controversial memoranda that had been issued by the Obama-era Board, including but not limited to the “Report of the General Counsel Concerning Employer Rules.”

Although the memorandum does not guarantee that changes are coming, it at least signals that the General Counsel and Board are going to be taking a closer look at some of the decisions and policies that the Obama-era Board issued.

And, although it wasn’t addressed in the memorandum, the NLRB is revisiting the “Quickie Election” Rule.  Yesterday, the NLRB announced that it will publish a Request for Information in the Federal Register seeking input on the Rule.  This RFI is scheduled to be published on December 14, 2017.  Specifically, the Board is asking three questions:

1. Should the 2014 Election Rule be retained without change?
2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

Employers who are interested in commenting on the Rule should do so.  Comments must be submitted by February 12, 2018, electronically at www.nlrb.gov or via mail at Roxanne Rothschild, Deputy Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570.  Responses must be received by the Board prior to the deadline.  The Request for Information warns those who wish to comment that it experiences delays in mail delivery because of security precautions and that commenters should consider that when preparing to meet the deadline.