The new National Labor Relations Board general counsel telegraphed his intention to confront Obama-era regulations and work with the agency's Republican leadership to upend “changes in precedent” over the last eight years.

Peter Robb

Peter Robb, the newly appointed NLRB general counsel, sent a memo to the regional directors outlining priorities on which types of charges should be submitted to the office. Robb included a checklist highlighting policy shifts made by the Obama-era board that the business community protested. The Dec. 1 memo also rescinded guidance from his predecessor Richard Griffin, a former union chief.

“The advice memo signals the GC's intent to assist the board in undoing much of the Obama-era board's sweeping changes to federal labor law,” Steptoe & Johnson LLP associate Erin Bass wrote on Monday on the firm's labor and employment blog.

The Republican control of the labor board was established with the confirmations of Marvin Kaplan, who previously was chief counsel of the Occupational Safety and Health Review Commission, and former Littler Mendelson management-side attorney William Emanuel. Chairman Philip Miscimarra, a Republican member, has announced his intention to step down. His replacement has not yet been tapped. Robb joined the board from Downs Rachlin Martin in Vermont.

Robb's guidance will be crucial in outlining the board's priorities moving forward. The position has the power to bring forward cases for the board to consider.

Robb's memo nixed Griffin's efforts to extend the rights of employees to use email systems for union organizing or group discussions, and the new directives voided Obama-era guidance that a company's misclassification of an employee as independent contractors was on its face a violation federal labor law.

The wish list included a host of topics that have been high on the minds of the business community for several years that he would like to see the board overturn. These include cases involving employer handbook rules that were found unlawful under the previous board, such as disrespectful conduct, rules governing “no camera” or “no recording” and rules requiring employees to maintain confidentiality of workplace investigations.

The general counsel also said he is seeking cases where employees, despite obscene or vulgar behavior or actions, did not lose protection under the National Labor Relations Act. He also asked the regional directors to look for cases involving an employee's social media postings to address the question over whether or not such speech is protected.

One of the most controversial decisions by the Obama-era board was the decision that expanded the scope of what is considered a joint employment relationship. The U.S. Court of Appeals for the D.C. Circuit heard arguments over the board's ruling and legislation passed the House of Representatives addressing the issue. Robb, asking regional directors to look out for such cases, intends to revisit this issue.

Michael Lotito, a Littler Mendelson attorney and chairman of the Workplace Policy Institute, said Robb's directives shed light on the broad array of precedents the board will tackle once it starts hearing cases. They are significant, he said, because the general counsel's role will be key in finding cases to push forward this Republican leadership agenda.

“What struck me about it was how quickly he drafted this memo and sent it out, as well as the broad array of issues that need to be addressed,” Lotito said. “It suggests that someone has been giving great deal of thought to his role, that he is someone who has been prepared for the position and individual wants to take action.”

Lotito said Robb, as general counsel, will have the power to “mold the issues before the board.” He added: “I think what the general counsel is doing is painting a broad brush to find the cases that have the best factual underlying scenarios to present issues to the board members.”

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