Fresh off his Senate confirmation two weeks ago, new National Labor Relations Board (NLRB) General Counsel Peter Robb has issued guidance that may portend welcomed changes for employers regarding controversial Obama-era pro-labor decisions.

The guidance comes in the form of a memorandum to the Regional Offices, dated December 1, 2017, in which Mr. Robb introduces what is essentially the General Counsel’s office’s new enforcement agenda. This memo emphasizes the General Counsel’s efforts to address several pro-labor Board decisions that were issued in the past eight past years and that concern key issues for employers. Such issues include:

  • the expanded scope of protected concerted activity,
  • unlawful handbook rules,
  • use of the employer’s e-mail system for organizing purposes,
  • joint employer status,
  • conflicts between the NLRA and other statutes (such as Title VII).

To be sure, these decisions cannot be changed by the General Counsel or the Regional Offices alone—but only by contrary Board decisions. The  General Counsel’s promise to provide the Board with the Agency’s “best analysis” of these issues, however, may help facilitate changes down the road.

On a more immediate note, the memo also rescinds several prior General Counsel Memoranda interpreting various Board precedents in a pro-labor manner. These rescissions include prior General Counsel Memoranda concerning, among other things:

  • unlawful handbook rules (again),
  • inclusion of front pay in Board settlements,
  • pre-arbitral deferral guidelines, and
  • intermittent and partial strikes.

These rescissions are effective immediately. And while no replacement guidance has been issued yet, the rescissions likely signal the issuance of more employer-friendly guidance from the General Counsel in the future.

As the summary above suggests, any practical relief for employers  will likely come about only with new cases that give the Board and the General Counsel the opportunity to address these issues. This will take time. Meanwhile, the memo is quick to point out that, with regard to current and pending cases, the General Counsel will continue to apply existing Board precedent in making determinations as to whether to issue complaints. Obviously, it will be up to the new Board to make a determination as to whether that Board precedent will remain or should be overturned yet again. Nevertheless, this memo is perhaps the clearest indication yet that changes to the Obama Board’s pro-union labor policies are headed employers’ way, after all.

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Photo of Michael J. Frantz Michael J. Frantz

For over forty years, Mike’s practice has been devoted to the exclusive representation of employers and their management teams in dealing with the full range of labor and employment issues. He has represented employers in contract negotiations with virtually every major union in the U.S. and Canada. Throughout his career he has focused on representing health care and higher education institutions, as well as manufacturing companies and service organizations.

Mike’s practice also includes serving as outside general counsel for a number of his clients. He also serves as a member of the Board of Directors or in other corporate positions for many clients. Nothing gives Mike greater satisfaction as a lawyer than to become known as a trusted advisor to those clients.

Mike currently serves as a member of the firm’s Management Committee that is charged with the responsibility of focusing on the strategic planning and overseeing the day-to-day administration of the firm. He has been recognized at the highest ranking, Band 1, in the area of Labor and Employment by Chambers USA: America’s Guide to Leading Lawyers in Business and designated Best Lawyers’ “2016 Lawyer of the Year” in Employment Law—Management in Cleveland. Mike is continuously named to The Best Lawyers in America and the Ohio Super Lawyers lists.

Photo of Ryan T. Smith Ryan T. Smith

Ryan focuses his practice on employment litigation and labor relations. He represents management in state and federal courts and before administrative agencies in a wide range of matters, including employment discrimination, retaliation, and harassment, wage and hour disputes, including class and collective actions, and breaches of non-competition and other types of employment agreements. Ryan also represents employers in traditional labor matters, at arbitrations and before the National Labor Relations Board.

When not representing employers in active disputes, Ryan counsels them on key employment decisions such as wage and hour compliance, leave administration, and terminations, and on various aspects of the collective bargaining relationship. He also drafts employment agreements and policy manuals.