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Fresh off his Senate confirmation two weeks ago, new National Labor Relations Board (NLRB) General Counsel Peter Robb has issued guidance that may portend welcomed changes for employers regarding controversial Obama-era pro-labor decisions.
The guidance comes in the form of a memorandum
to the Regional Offices, dated December 1, 2017, in which Mr. Robb introduces what is essentially the General Counsel’s office’s new enforcement agenda. This memo emphasizes the General Counsel’s efforts to address several pro-labor Board decisions that were issued in the past eight past years and that concern key issues for employers. Such issues include:
· the expanded scope of protected concerted activity,
· unlawful handbook rules,
· use of the employer’s e-mail system for organizing purposes,
· joint employer status,
· conflicts between the NLRA and other statutes (such as Title VII).
To be sure, these decisions cannot be changed by the General Counsel or the Regional Offices alone—but only by contrary Board decisions. The General Counsel’s promise to provide the Board with the Agency’s “best analysis” of these issues, however, may help facilitate changes down the road.
On a more immediate note, the memo also rescinds several prior General Counsel Memoranda interpreting various Board precedents in a pro-labor manner. These rescissions include prior General Counsel Memoranda concerning, among other things:
· unlawful handbook rules (again),
· inclusion of front pay in Board settlements,
· pre-arbitral deferral guidelines, and
· intermittent and partial strikes.
These rescissions are effective immediately. And while no replacement guidance has been issued yet, the rescissions likely signal the issuance of more employer-friendly guidance from the General Counsel in the future.
As the summary above suggests, any practical relief for employers will likely come about only with new cases that give the Board and the General Counsel the opportunity to address these issues. This will take time. Meanwhile, the memo is quick to point out that, with regard to current and pending cases, the General Counsel will continue to apply existing Board precedent in making determinations as to whether to issue complaints. Obviously, it will be up to the new Board to make a determination as to whether that Board precedent will remain or should be overturned yet again. Nevertheless, this memo is perhaps the clearest indication yet that changes to the Obama Board’s pro-union labor policies are headed employers’ way, after all.