New Labor Board GC Signals Overturning Obama-Era Rulings, But Anticipated Vacancies And Recusals Create Uncertainty

On November 8, 2017, Peter B. Robb was sworn in as the General Counsel (GC) of the NLRB for a four year term. Robb succeeds Richard Griffin, who has been the GC since November 2013. Robb wasted no time in taking initial steps to undo many of the NLRB's more controversial recent decisions. On December 1, 2017, Robb issued Memorandum 18-02 directing the NLRB's regional offices on which types of charges should be submitted to his Division of Advice and rescinding policy memoranda issued by the prior GCs.

The Board's GC comes with broader responsibilities than the typical GC position at any other federal agency. In particular, the Board's GC is empowered with unreviewable prosecutorial discretion in determining which unfair labor practice charges are pursued as formal complaints. As such, the GC selects which cases are considered by the Board and can therefore control the development of Board precedents. Thus, the GC is the primary gatekeeper for Board policy by choosing which cases to argue before the Board and issuing internal guidance to regional offices and their lawyers on which types of matters to pursue.

Mandatory Submissions to the GC's Division of Advice

The December 1 memorandum provides a mandatory list of issues that must be submitted to the Division of Advice for further analysis. In the memorandum, Robb explains that: "the last eight years have seen many changes in precedent, often with vigorous dissents. The Board has two new members [Board Members William J. Emanuel and Marvin E. Kaplan] who have not yet revealed their views on many issues. Over the years, I have developed some of my own thoughts. I think it is our responsibility to make sure that the Board has our best analysis of the issues. To that end, I have developed the following guidelines which will serve as my mandatory Advice submission list." The list identifies 26 categories of unfair labor practice cases involving "significant legal issues" that should be submitted to the Division of Advice, including the following:

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 - Practically speaking, this implicates a majority of the key Board decisions issued by the Democratic appointees of President Obama since most of those rulings included a dissenting opinion by Republican Board members...