On November 8, the Senate confirmed Peter Robb as the new General Counsel to the National Labor Relations Board. As General Counsel, Mr. Robb has broad prosecutorial discretion with respect to complaints of unfair labor practices coming before the Board for decision. Thus, he is to a large extent in a position to decide which cases and issues involving interpretations of the National Labor Relations Act warrant administrative litigation before the Board.
Over the past eight years, when a Democratic majority controlled the Board and Democrat Richard Griffin was the General Counsel, employers, as well as employees seeking to refrain from union and other concerted activity, found themselves in a less than hospitable legal environment. But a recent General Counsel Memorandum from Mr. Robb indicates that change has come and that more may be on the way. The Memorandum requires the review of many Obama-era decisions by the headquarters Division of Advice. It also immediately rescinded several of Mr. Griffin’s memoranda that explained his policy initiatives and some questionable legal interpretations.
Mr. Robb’s prompt and decisive action in issuing the Memorandum immediately drew fire from Democrats in Congress. Sens. Patty Murray (D-Wash.) and Elizabeth Warren (D-Mass.), have demanded that he provide them with correspondence he had with any third parties regarding subjects addressed in the Memorandum and ask for an explanation as to how he could have developed his positions so quickly after his confirmation. The Senators contend that Mr. Robb had indicated he had an open mind in pre-confirmation interviews with their staff. They call the Memorandum “sweeping” and assert that its “abrupt issuance ... and the efforts it chooses to target raise serious and troubling questions.” Providing no examples, the Senators assert that “[t]he Trump Administration has a troubling track record of undermining worker protections, and we are deeply concerned that your policy changes will ultimately enable bad actors to violate workers’ fundamental labor rights with impunity.” They complain that it appears to them “that in a mere nine workdays” as General Counsel, Mr. Robb “developed opinions on a dozen complex legal questions,” leading to rescission of seven General Counsel memos and five other NLRB initiatives that they assert, again providing no examples, “expand workers’ rights.” The letter includes an expansive request for documents, asks for an explanation as to how Mr. Robb chose the prior eight years as the window for his stated review of precedential Board decisions, and whether he consulted with Board Regional Directors.