Newly appointed National Labor Relations Board General Counsel Peter Robb this week issued a memorandum encompassing at a high level his initial agenda as General Counsel, in which he signaled his intent to assist the Board in undoing numerous hot-button Board precedents of the Obama-era. Much of what's contained in the memo should come as welcome news to employers.
Released Dec. 1, the five-page memorandum,“Mandatory Submissions to Advice,” sets forth the kinds of cases regional directors must submit to the Division of Advice to obtain guidance before issuing a complaint.
“The last eight years have seen many changes in precedent, often with vigorous dissents,” Robb said in the memo. “The Board has two new members who have not yet revealed their views on many issues.”
“I think it is our responsibility to make sure that the Board has our best analysis of the issues,” Robb added. “To that end, I have developed the following guidelines which will serve as my mandatory Advice submission list, in the tradition of my predecessors as General Counsel.”
He grouped the issues as follows:
The NLRB will base decisions on extant law. “Cases should be processed and complaints issued according to existing law,” Robb said. “No new theories will be presented on cases that have been fully briefed to the Board in order to avoid delay.”
General Counsel will not be offering new views on cases pending in the courts, unless directed to by the NLRB or courts.
ases that involve significant legal issues should be submitted to Advice. Significant legal issues include cases over the last eight years that overruled precedent and involved one or more dissents, cases involving issues that the NLRB has not decided, and any other cases that the region believes will be of importance to the General Counsel.
In the memo, Robb said he has not yet identified any “novel legal theories” he wants explored through mandatory submissions to the Division of Advice. However, the Memo puts on the chopping block seven prior agency advice memos, including GC 15-04 (Report of the General Counsel Concerning Employer Rules), a 30-page memorandum on handbook rules issued by former General Counsel Richard Griffin.
The memo also lists 26 “examples of Board decisions that might support issuance of complaint, but where [the GC’s office] also might want to provide the Board with an alternative analysis.”
Among the issues those cases address include:
Common employer handbook rules, including rules prohibiting “disrespectful” conduct; and rules requiring employees to maintain the confidentiality of workplace investigations;
Disparate treatment of represented employees during contract negotiations;
Purple Communications and an employees’ presumptive right to use their employer’s e-mail system to engage in activities under Section 7 of the National Labor Relations Act, which refers to workplace activities that employees are allowed to engage in without fear of retaliation by the company; and
At the very least, employers should follow the latest NLRB developments, as many of the most far-reaching and precedent-setting decisions issued under the Obama administration will likely be re-examined—and result in several long-awaited changes.