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New NLRB General Counsel’s Revolutionary Reversal of Direction

December 11, 2017

The newly-appointed General Counsel (GC) of the National Labor Relations Board (NLRB), Peter B. Robb, issued his first GC Memorandum (GC 18-02) on December 1, 2017, which provides guidance on the priorities of the Trump-era NLRB.

This new memorandum is significant for employers because it signals GC Robb’s intention to undo many decisions of the Obama-era NLRB that created new, pro-worker liabilities for employers, and compelled undesirable changes to workplace policies and rules.

The new Memorandum rescinds several GC Memoranda previously issued by GC Robb’s predecessors, including Memoranda that addressed employee handbooks, joint employer status, employer email, the expansion of Weingarten rights and whether offensive speech that may violate civil rights laws is protected under the National Labor Relations Act (NLRA).

Those rescissions are effective immediately, and they include:

Subsequent to the issuance of the now-rescinded GC Memoranda, the NLRB Members had issued decisions with respect to some of the topics addressed in those Memoranda, and the Board Members have not yet issued any new opinions overruling their prior decisions, so GC Robb's memorandum does not require any immediate revisions to employee handbooks or other workplace rules.

GC Robb also stated that the following “initiatives” set out in Advice memoranda “are no longer in effect,” meaning that the GC will not pursue unfair labor practice complaints on these issues:

GC Robb states that he “will base decisions [about the issuance of unfair labor practice complaints] on extant law,” and “[n]o new theories will be presented on cases that have been fully briefed to the Board [Members] in order to avoid delay.” He nevertheless advises that any new cases that involve certain “significant legal issues” must be referred to the GC’s Division of Advice, (“Advice”).

Some of the “significant legal issues” identified by GC Robb, which now must be submitted to Advice before the GC will issue a complaint are, “cases over the last eight years that overruled precedent and involved one or more dissents” such as those “where complaint issuance is appropriate under current Board law, but where we might want to provide the Board [Members] with an alternative analysis.” This seems to signal that the GC may argue to the Board Members that some recent precedents should be overturned and prior decisional law should be reinstated.

The new GC Memorandum provides a non-exhaustive list of these “significant legal issues,” including:

The December 1, 2017 Memorandum provides the newly-appointed GC’s opinion on various issues and sends a clear signal that, as expected, the new "Trump" NLRB will have very different priorities than did the Obama-era NLRB. However, while the new GC Memorandum is informative, the NLRB has not yet issued any opinions overruling prior decisions. Employers may wish to proceed cautiously and wait for further action by the NLRB before modifying any existing workplace rules or policies.

Please do not hesitate to contact any of our attorneys if you have any questions about the particular issues addressed in the new GC Memorandum and how this guidance may affect your company or industry.