The National Labor Relations Board (NLRB) enforces and interprets the National Labor Relations Act (NLRA), which ensures the rights of employees to engage in collective bargaining and other union-related activities. During the Obama administration, NLRB General Counsel Richard F. Griffin, Jr. aggressively advocated for labor-friendly positions, and the Democratic-majority Board often agreed. But this Thanksgiving season, two new board members and a new General Counsel have set the table for changes that could make things a little easier for employers.
Mr. Griffin’s four-year term as NLRB General Counsel expired on November 4, 2017. On November 17th, Peter B. Robb was officially sworn in as the Board’s new General Counsel. Before his appointment, Mr. Robb practiced labor and employment law for management-side law firms since the mid-1980s, including serving as chairman of the Labor and Employment Practice Group of a northern New England firm. Prior to his private practice experience, Mr. Robb served as a field attorney with the NLRB, and was chief counsel to former Board member Robert Hunter, a Republican. Mr. Robb is best-known for his representation of the Federal Aviation Administration (“FAA”) during the 1981 air traffic controller’s strike. While Mr. Robb’s Senate confirmation hearings were very brief and did not provide much information about his policy views, Mr. Robb criticized some of the Obama-era Board’s rulings during his time as a management-side attorney, including rulings that gave employees the right to use the company’s email to organize the workforce and decisions that found employer civility in the workplace rules unlawful.
As the General Counsel, Mr. Robb is independent from the Board and has a role similar to a prosecutor, including investigating and prosecuting of unfair labor practice claims. Mr. Robb can prioritize which cases will be brought in the NLRB’s regional offices, can set policies for NLRB attorneys to follow, and can argue cases before the full Board and in the courts. His appointment sets the stage for more employer-friendly rulings and potential reversals of pro-labor decisions. As covered earlier by HR Legalist, the NLRB now has a Republican majority, thanks to new Republican appointees Marvin Kaplan and William Emmanuel. However, since the Board sets policy on a case-by-case basis, employers will need to wait and see what issues the Board tackles first before changing any employment practices or policies.
HR Legalist will continue to track changes at the NLRB and how they will impact employers. In the meantime, employers with questions regarding how these potential changes could impact them should consult counsel with expertise in this area.
Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or firstname.lastname@example.org
Qiwei Chen is a mandarin-speaking attorney, practicing in the areas of employment law and employment-based immigration matters. She can be reached at 412-288-2476 or Qiwei.Chen@obermayer.com.