A Sea Change – A Modern Workplace Series Digesting the NLRB General Counsel's Sweeping Reforms
It’s no secret that the NLRB has been subject to some swings in policy over the years, largely based on which party is in power. But many agree that the pace of these changes accelerated significantly under President Obama’s General Counsel and Board. The new General Counsel of the NLRB—Peter Robb—made clear in a Memorandum he issued Friday, December 1 that he’s among those who wants to roll back many of those policy changes. Because of the breadth of the Memorandum, which takes aim at a broad swath of issues that have characterized the area of labor law over the last eight years, over the next several weeks, the Modern Workplace blog will individually examine some of the potential policy implications of this Memorandum.
While it’s important to recognize the Memorandum for what it is — a shot across the bow of the major policy priorities of the Obama-era NLRB — it’s also important to recognize what it’s not. It is not, for example, a broadside against those policies. First, as the Memorandum itself notes, the new General Counsel will allow cases currently pending to proceed “according to existing law” and will not advance “new theories” in those cases, and the General Counsel’s office will generally refrain from “offering new views on cases pending in the courts.” Contrast this approach with that taken by the Department of Labor, which has changed its view and defended some of its own regulations less vigorously than during the prior administration. Second, it’s important to remember that the General Counsel does not have the same kind of direct power over policy as some administrators in other agencies. The Memorandum recognizes that the primary lawmakers at the Board are the Board members themselves, and points out that “[t]he Board has two new members who have not yet revealed their views on many issues.” As the prosecutorial wing of the Board, the General Counsel’s office has discretion about how to advance and prioritize cases, but at the end of the day, the Board’s decisions on legal issues control.
While it doesn’t directly make policy, the General Counsel’s Memorandum certainly signals changes to come, especially considering that the two new Board members are likely to create a majority management-friendly Board. For example, the Memorandum requires submitting cases to the General Counsel’s Division of Advice, instead of proceeding through the ordinary region-based process of managing cases, that relate to legal issues established in “cases over the last eight years that overruled precedent and involved one or more dissents.” Presumably, the Division of Advice will determine how best to proceed in shaping policy outcomes that align with the new Administration’s priorities. The Memorandum’s examples of high-priority issues is long and revealing, and many of these issues will be examined in greater detail in future posts in this series. For example, policies on which the General Counsel has set his sights include:
- The NLRB’s intensified attack on employer codes of conduct (discussed here and here);
- What counts as protected activity (including social media issues, discussed here);
- Joint employer issues (discussed here); and
- What companies are considered “successors” to a predecessor’s existing union relationship (discussed here).
Stay tuned for posts in the coming weeks with additional insights on the implications of the General Counsel’s Memorandum, including details of the Obama-era shifts in policy within his sights and when we can expect to start seeing some of these long-awaited changes materialize.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.