On November 8, 2017, the U.S. Senate confirmed Peter Robb as the new General Counsel for the National Labor Relations Board ("NLRB" or "Board"). In private practice, Robb was a noted critic of the NLRB under the Obama administration, particularly the Board's so-called quickie election rules and what he has termed the Board's narrow definition of supervisory status.
This appointment is significant both because the NLRB has been particularly active in recent years, issuing numerous pro-employee, pro-labor decisions, and because the General Counsel role comes with substantial power. Robb will manage the day-to-day affairs of the NLRB and is charged with enforcing the National Labor Relations Act. As the NLRB's top prosecutor, he will have the authority to initiate enforcement actions on his own. With this discretion, Robb will decide what matters go before the full Board, where the current Republican majority will have the opportunity to reverse Board precedent--such as decisions that allowed employees to use an employer's email to assist in organizing and that found a 90-minute "sit-in strike" on the employer's property to be protected activity.
Robb also will have a role in crafting the Board's rules and regulations, where it is likely he will oversee changes to the time-compressed election rules he has criticized in the past.
Maybe most important among Robb's new powers is his ability to issue memoranda/guidance on various topics, such as how an employer may address the social media postings of employees. While not binding, these memoranda give employers an insight into the policies and positions of the NLRB and can assist employers with fashioning their own policies.
In recent years, the NLRB has been unusually active, initiating enforcement actions and offering guidance in areas long viewed as beyond the scope of the NLRB's authority. As a long-time management-side labor lawyer, Robb is expected to reverse many of the positions taken by the NLRB under President Obama, moving toward a more pro-employer stance.
If you have any questions about Robb's appointment or its impact on your business, please contact:
Carrie M. Harris
Kevin L. Carr