New Labor Board Counsel Looks at Undoing Obama-Era Rulings

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By Hassan A. Kanu and Lawrence E. Dube

The federal labor board’s top prosecutor seems primed to steer the agency toward reversing many of the rulings that expanded workers’ rights during the Obama administration, although Peter Robb told Bloomberg Law in an exclusive interview Dec. 4 that he’s only preparing his office to present different arguments to a board that recently flipped to Republican control.

“Basically, you’re looking at a list of things that I think we need to be prepared to talk about and provide a position to the board,” Robb told Bloomberg Law.

Robb, who was confirmed Nov. 8 as National Labor Relations Board general counsel, directed regional board officials in a Dec. 1 memo to consult his offices on any cases involving precedent set on workers’ rights in “the last eight years,” and any others involving “significant legal issues.” The directive also rescinds seven agency guidance memos that were issued by his Democratic predecessors.

The board general counsel has significant independent authority to influence the agency’s overall agenda. The memo is a strong indication that Robb will ask the board to reject the expansive view of the National Labor Relations Act and its worker protections that was adopted by the Obama-era board and general counsel.

Some examples included in the memo are cases involving questions about joint employment—when more than one entity can be held legally liable for workplace violations—and use of company email or other electronic communication tools for union organizing activities.

The directive specifies rulings from the previous eight years and other significant cases that involved one or more dissenting opinions.

Practically, this implicates a majority of the notable decisions issued by the Democratic appointees of President Barack Obama—as most of those rulings included a dissenting opinion by Republican board members Philip A. Miscimarra or Harry I. Johnson, or both.

But Robb said his memo should not be read to mean that he will definitely ask the board to overrule precedent on all of the issues covered. Instead, he said, he wants NLRB staffers to be “prepared to talk about” all of the issues and to present his office’s position on each as appropriate.

Keeping an Eye on 26 Categories

“The last eight years have seen many changes in precedent, often with vigorous dissents,” Robb wrote in the memo.

Robb said the board’s newest members, Marvin E. Kaplan and William J. Emanuel, “have not yet revealed their views on many issues,” while he has developed his own “thoughts” over the years.

Regional offices should continue to process cases and complaints according to existing principles of board law, Robb said. He directed the regions to submit to the general counsel’s Division of Advice “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.”

The general counsel’s memo listed 26 categories of unfair labor practice cases that should be submitted to Advice, including cases concerning rights under the NLRA and unfair labor practices by employers.

Previous Guidance Rescinded

The new general counsel told Bloomberg Law he has not yet identified other “novel legal theories” that should be explored by submission of regional cases to the Division of Advice, but he has decided to rescind seven memorandums issued by former Acting General Counsel Lafe E. Solomon and former General Counsel Richard F. Griffin from fiscal years 2011 to 2017.

The memorandums range from early memos concerning default provisions in settlements and inclusion of front pay in settlements to Griffin’s fiscal year 2017 memo describing his position on the statutory rights of university faculty and students in unfair labor practice cases.

Finally, Robb said there were several “initiatives” described in memorandums from the Division of Advice that “are no longer in effect.”

Those initiatives include seeking to extend a board decision that allowed employees to use company email systems to other electronic communication systems.

Robb also rescinded an Advice initiative to argue that an employer’s misclassification of employees as independent contractors violates the NLRA, as well as any initiative to persuade the NLRB that workers in nonunion workplaces have a right to request the presence of a co-worker during investigatory interviews.

Memo Criticized as Too Broad

Robb’s memo is “very expansive,” according to Celine McNicholas, a former NLRB director of congressional and public affairs and special counsel. McNicholas is now labor counsel at the Economic Policy Institute.

“This expansive list to me seems to be a knee jerk reaction to everything that occurred under the prior general counsel and the Obama board,” McNicholas said. The timing of the memo, after Robb’s first few weeks in office, indicates there “wasn’t substantive evaluation.”

Robb told Bloomberg Law he “consulted with all” his “senior leadership” in formulating the directives.

“Richard Griffin and the Obama board made a number of decisions that I think everyone knows will be reconsidered,” Zachary Fasman, an employment law partner at Proskauer Rose, told Bloomberg Law.

“I don’t think it’s inappropriate for the NLRB general counsel to say these issues will be looked at,” Fasman said.

To contact the reporters on this story: Hassan A. Kanu and Lawrence E. Dube in Washington at hkanu@bloomberglaw.com and ldube@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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