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The White House announced on Friday, September 15, 2017, that President Donald Trump has nominated Peter B. Robb to serve as the next General Counsel for the National Labor Relations Board.  Robb is a management-side labor and employment attorney, who currently practices in Vermont.  Robb previously worked as a field attorney for the NLRB, a supervisory attorney for the Federal Labor Relations Authority, and then as the Chief Counsel to former NLRB member Robert Hunter (a Republican), who was appointed to the Board in 1981 by President Reagan.  In 1985, Robb began private practice representing company management in labor and employment law.  As the General Counsel, Robb would decide which issues to put before the NLRB for resolution.  A rollback of a number of union-friendly decisions is expected.

If confirmed, Robb will replace Richard Griffin, a union attorney appointed by former President Obama.  Robb would be the first Republican to serve as NLRB General Counsel since 2010.  What’s more, the transition from a Democratic to Republican General Counsel parallels recent Board appointments.  Currently, the Board is comprised of two Republican representatives, Chairman Philip Miscimarra and Marvin Kaplan, and two Democratic representatives, Mark Pearce and Lauren McFerran.  One seat is vacant.  Although Miscimarra has announced that he will retire at the end of his term in December 2017, it is likely that President Trump will nominate another Republican to replace Miscamarra.  Trump has already nominated Republican William Emanual to fill the currently vacant Board seat.  If Emanual is confirmed, the NLRB would have a Republican majority for the first time in ten years.

Robb’s nomination, and the overall transition of the Board to a more company-sided majority, could have expansive impact on labor laws and affect business operations and employment related risks.  The Democratic-led NLRB has decided several controversial issues, including broader joint employment liability, the appropriateness of small “micro units” of employees, and the enforceability of employee class action waivers.  The NLRB has also taken a hard stance with employee handbooks (previously discussed here and here), holding that several common provisions have a “chilling” effect on employees’ exercise of Section 7 rights to communicate about their wages, hours, and other terms and conditions of employment, and thus are illegal.

The U.S. Supreme Court is scheduled to hear oral argument on October 2, 2017, on the issue of whether arbitration agreements that include class action waivers are legally enforceable under the National Labor Relations Act.  Although current NLRB General Counsel Griffin is slated to argue on behalf of the NLRB, depending on the Court’s decision, the next General Counsel would determine how the Board applies its ruling.  This will likely also be true on the issue of joint employment and how the NLRB responds to the appeal of its 2015 Browning-Ferris Industries decision, currently pending before the U.S. Court of Appeals for the District of Columbia Circuit.  In Browning-Ferris, the Board held that a company may be found to be a joint employer even if it does not exercise direct and immediate control over the workers at issue.

Because the NLRB General Counsel has the authority to issue charges of alleged unfair labor practices against employers, as well as the authority to dismiss any charges, if confirmed, Robb would play a significant role in determining the issues the NLRB decides.  Although it is impossible to know exactly how Robb would proceed as General Counsel, when coupled with the expected transition of the Board itself to a Republican majority, employers may soon see a more business-friendly NLRB.