New General Counsel Expected to Set New Probusiness Agenda for NLRB

A much more business-friendly atmosphere is expected at the National Labor Relations Board (NLRB) now that the U.S. Senate has confirmed Peter B. Robb as the Board’s General Counsel.

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Robb, a management-side attorney with a Vermont law firm, won confirmation on a 49-46 party-line vote on November 8. He is President Donald Trump’s choice to replace Richard F. Griffin Jr., whose term as General Counsel expired on October 31. Griffin, nominated by President Barack Obama, began his tenure on November 4, 2013. Before Griffin, another Democratic nominee, Lafe Solomon, held the post.

With Robb on board as General Counsel, the five-member NLRB not only has a Republican majority of members, but it also has a Republican “quarterback,” says Kevin C. McCormick, chair of the labor and employment section of Whiteford, Taylor & Preston, L.L.P., in Baltimore, Maryland, and editor of Maryland Employment Law Letter. As General Counsel, Robb will set the tone for the NLRB since the General Counsel is responsible for selecting cases the Board will hear.

“He’s going to be like the quarterback on the team to help roll back the decisions that have caused employers heartache over the last eight years,” McCormick says. Robb will be the one to orchestrate any attempts to roll back those decisions of the Obama-era Board.

Change won’t be immediate, though, because the NLRB will have to wait for cases to come up before setting new precedents, but Robb will be in a position to decide which issues the Board will tackle. “It all begins with the General Counsel,” McCormick says.

McCormick expects a dramatically different climate at the NLRB. He said Griffin led the Board in an especially aggressive prolabor direction, even going after employers with 10(j) injunctions, which are injunctions authorized under Section 10(j) of the National Labor Relations Act (NLRA). That section allows the Board to seek temporary injunctions against employers in federal district courts to stop potentially unfair labor practices while the case is being litigated before administrative law judges and the Board.

Such injunctions are designed for use when employers are engaging in truly egregious conduct, McCormick says, and they were used sparingly before, but Griffin was aggressive in using them.

NLRB Makeup

Robb takes the General Counsel post with the NLRB having a Republican majority for the first time in 10 years. Two Trump nominees, Marvin E. Kaplan and William Emanuel, recently joined fellow Republican and Board Chair Philip Miscimarra and Democrats Mark G. Pearce and Lauren McFerran. Miscimarra’s term ends on December 16, and he has said he won’t accept another term. So the Board will have a 3-2 Republican majority for only a short time until a new Trump nominee can be confirmed.

Traditionally, the NLRB doesn’t overturn positions unless it has at least a 3-2 majority, McCormick says, so unless Miscimarra is replaced soon, there will be a 2-2 tie. That’s enough to “stop the bleeding,” McCormick says, but not enough to roll back the controversial decisions of the Obama-era Board. According to McCormick, when the Board gets its full complement of members, it will begin to take another look at the “aggressive prounion” decisions of the previous Board.

Some actions will take more time, however, McCormick says. For example, the controversial “quickie elections” rule won’t be easy to undo. A regulation put in place in 2014 shortened the time between when a petition for a union election is filed and when the election has to take place. Employers opposed the change, saying the rule doesn’t give them adequate time to respond to a union campaign.

The election rule was done by regulation, and the only thing a new Board can do about it is begin the time-consuming process of issuing new regulations, which can take over a year, McCormick says. But Robb will be in a position to make other significant changes right away to undo some of the other “aggressive prounion policies” of his predecessor.

John Lovett, chair of the labor and employment law practice group at Frost Brown Todd LLC in Louisville, Kentucky, and an editor of Kentucky Employment Law Letter, agrees Robb will bring substantial change to the NLRB. “U.S. employers will finally start to feel the impact of the 2016 election on labor law enforcement with Peter Robb’s installation as NLRB General Counsel,” he says.

“The NLRB’s General Counsel ultimately decides what labor law cases to prosecute,” Lovett says. “Until now, President Obama’s appointee has made those decisions. Now, that will change. The needs of those creating the jobs will, at least, be considered.”