Many thanks to Arslan Sheikh for his assistance in preparing this post.
Last week, President Trump nominated Peter Robb, a management-side labor attorney, to serve as general counsel to the National Labor Relations Board (NLRB). As the top lawyer for the NLRB, the general counsel has a great many responsibilities, which include giving advice to the regional offices of the NLRB concerning enforcement issues. The advice is often communicated in advice memoranda. These advice memos are critical because they advise the regional offices on how to interpret and to enforce labor law. It is the regional offices that process unfair labor practice charges and union representation petitions. As a result, the office of the general counsel can have a significant influence on what employers can expect to face in NLRB enforcement proceedings.
If Robb is confirmed by the Senate, which is likely, he will take over when current General Counsel Richard Griffin’s four-year term expires on Oct. 31, 2017. Based on his professional background and experience, there is reason to expect that Robb will take a more employer-friendly position on many labor law issues than his predecessors did during the Obama administration. For example, Robb has been critical of the NLRB’s efforts to shorten the timeframe in which an employer can react to a union election petition.
Timing is everything
The nomination of Robb comes at a time when the NLRB’s composition is in transition.
When President Trump took office in January of 2017, the NLRB had two Democratic members, one Republican member and two vacancies. President Trump has already nominated Republican Marvin Kaplan to fill one of the vacancies and his nomination has been approved by the Senate. As such, the NLRB currently has two Democratic members, two Republican members and one vacancy. Republican William Emanuel awaits a confirmation hearing in the Senate for the sole remaining vacancy. If and when the Senate confirms Emanuel, the NLRB will have a 3-2 Republican majority until December, when current Chairman of the Board Philip Miscimarra will step down. The Trump administration is allegedly considering John Ring, a D.C.-based management-side labor attorney to replace Miscimarra. If Ring is indeed nominated and confirmed, it could ensure that the NLRB has a 3-2 Republican majority for the foreseeable future. If the GOP obtains that majority, the new board members will have the opportunity to reverse many pro-labor rulings issued by the Obama-era NLRB.
The nomination of Peter Robb to serve as general counsel to the NLRB is an important development, in part, because of the influence wielded by the general counsel’s office on the way the NLRB interprets and enforces the law.
Assuming the Senate confirms President Trump’s Republican nominations, the board will likely become more employer-friendly. The combination can mean a change over time in the way the NLRB interprets and enforces labor law. Many of the labor law initiatives advanced in recent years could be on the way to erosion or reversal. However, it is important that employers recognize that existing NLRB case law and advice provided by outgoing general counsel is still the guidance for NLRB enforcement. Employers are well-advised not to make presumptions about future change and to, instead, be aware of and adhere to existing guidance unless and until it is changed.