Following eight years of Democratic dominance of the National Labor Relations Board, Republicans have the chance to roll back union gains following confirmation of Peter B. Robb as the agency's top prosecutor.
Republicans gained control of the agency's top board in September, the first time it has held an NLRB majority in ten years. However, control of the five-member panel is not as important as who sits in the general counsel's office: The top board issues decisions and sets precedent based on charges that originate from the general counsel and the 32 regional offices that report into him. The board members have no say in whether a case is brought before them.
"Not only is the general counsel setting the table, he's making the decision as to whether there's a picnic in the first place," said Michael Lotito, co-chair of Littler Mendelson's Workplace Policy Institute. "The general counsel fundamentally operates with virtually unfettered discretion. If he decides to issue or not issue a complaint, you're pretty much stuck with that fundamental determination."
Robb will replace career union attorney Richard Griffin at the post. Management-side attorneys concede that Griffin was an effective prosecutor from an ideological standpoint.
Steve Bernstein, an employer labor attorney at Fisher Phillips, said Griffin "achieved an awful lot" during his four-year tenure. Lotito called Griffin's knowledge of the law "first rate," but said his legacy on the board will be as "one of the most progressive general counsels in the history of the agency."
Griffin oversaw aggressive rulemaking and the adoption of novel legal theories that departed from the standing precedent and traditional interpretations of the National Labor Relations Act. His approach to the position led the agency to treat college students as employees, hold McDonalds liable for labor violations committed by independent franchisees, give regulators oversight of employee handbooks, and declare hostile social media posts toward bosses as protected speech.
He was able to initiate these substantial changes to the labor landscape by finding sympathetic cases and plaintiffs to bring before the board.
"What Mr. Griffin effectively did was find cases with factual scenarios to back up his arguments to get the progressive board to advance his progressive ideology," Lotito said. "He would send out memorandums telling [regional staffers] ‘I'm specifically looking for these kinds of cases.'"
The management of the agency's regional offices is another major area that gives the general counsel so much influence over the workplace. Fisher Phillips' Bernstein expects Robb's approach to the law to have a trickle-down effect on the regional offices where unfair labor practice complaints originate. He said Robb's ability to manage these offices and their staffs, many of whom are holdovers from the Obama administration, is the "wild card" of his confirmation.
"The general counsel sets the tone for regional offices in terms of investigating and initiating complaints, he said. "One would hope all those regions would get in line and carry out strategy just as they did with the last administration … but employers have from time to time expressed concern that they don't see a consistent approach from one jurisdiction to the next."
Bernstein said he does not expect to see Robb attempt to advance novel legal theories in the same vein as Griffin. He expects that the agency will roll back some of the Obama era policies and legal interpretations advanced by Griffin and the Democratic board. Bernstein, who has argued before the board for 27 years, said many of those policies could be reversed by returning to traditional precedents and more faithful interpretations of the National Labor Relations Act.
"I hope the current administration will bring balance back to the enforcement posture," he said. "My clients don't want or expect a 180-degree turn—they're looking for the rules of reason and law to guide the agency when it has been so one-sided, at times at the expense of justice."
Congress has already taken up some of that work, having passed legislation to return the joint employment standard guiding franchises to its long-standing definition, rather than that of Obama's NLRB. Lotito expects Robb to come under increased scrutiny as unions fight to protect the gains made under Griffin.
"I do anticipate that the general counsel's office will try to present cases to the board that will give it the opportunity to restore previous precedent," Lotito said. "If he tries to return to previous [standards] he's going to come under criticism, but he was getting criticized before he had the job anyway."