New NLRB General Counsel Lays Out Priorities

DECEMBER 6, 2017

The National Labor Relations Board’s (NLRB) new General Counsel, Peter B. Robb (a management-side labor attorney), sent a memorandum to Regional Directors, outlining “Mandatory Submissions to Advice” or instances that require Regional Directors to seek guidance from the national Division of Advice on particular legal issues.

As General Counsel, Robb is the NLRB’s top prosecutor, and has the discretion in deciding enforcement issues under the National Labor Relations Act (NLRA). He also has direct supervision over the attorneys in NLRB’s regional offices and in determining which cases to bring before the Board that now has a Republican majority.

The Robb memo is significant because it outlines the types of cases on which Regional Directors are now instructed to seek official guidance from Washington, DC before filing a formal complaint. It also offers insight into the direction of labor law policy during the Trump Administration.

It appears that Robb is intent to roll back many of the controversial policies implemented during the Obama Administration. The memo notes that, “Significant legal issues 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.”

Of particular significance, Robb expressly outlined controversial decisions that have found numerous employer handbook policies unlawful need to be submitted to the Division of Advice, issues related to the joint-employer standard, and the use of employers’ email systems for protected NLRA Section 7 activities.

It will take several months or more for cases to arise under these specific issue areas, but changes are likely on the horizon for a number of Obama-era NLRB precedents.