Recent NLRB Announcements Could Signal Changes.

Benefits Insights, Winter 2018

In December, the National Labor Relations Board (NLRB) made three significant announcements that may indicate changes to come under the Trump administration regarding labor laws. First, Peter Robb, the new General Counsel of the NLRB, issued a memorandum offering guidelines to serve as his mandatory Advice submission list. Next, the NLRB issued its first decision overturning a settlement of unfair labor practice charges (ULPs). And third, the board requested public comments concerning whether to change or rescind “quickie” election rules.

General Counsel’s memorandum, issued December 1st, identifies the topics that the Regional Directors must send to the Advice division, particularly cases that involve “significant legal issues,” which include:

  • Claims over the last eight years that overruled precedent and involved one or more dissents,
  • Cases involving issues the board has not decided,
  • Any other matters that the region believes will be of importance to the General Counsel.

With this guidance, the General Counsel has shown that he would like to revisit Obama-era decisions, possibly with the intention of challenging the current rulings. The General Counsel also rescinded seven prior General Counsel memoranda.

On December 11th, the NLRB overturned its 2016 decision, United States Postal Service, 364 NLRB No. 116, which ruled that an administrative law judge could not settle an Unfair Labor Practice charge over the objection of the General Counsel or charging party unless the settlement provided a “full remedy for all of the violations alleged in the complaint.”

In this recent decision, the board upholds the judge’s acceptance of UPMC’s guarantee, resulting in the dismissal of the complaint’s single-employer allegation. In turn, this reinstates the authority of judges to accept settlements over the objection of the General Counsel and charging parties, based on Independent Stave reasonableness factors, subject to board review (applying the Independent Stave factors) if the General Counsel or charging party files exceptions with the board.

The third announcement from NLRB came on December 13th as an RFI in the Federal Register, which asked for public comments on the board’s 2014 modifications to its union election procedures, known as the “quickie” election rules. In the RFI, the board is seeking information from interested parties regarding a series of questions:

  • Should the 2014 Election Rule be retained without change?
  • Should the 2014 Election Rule be maintained with modifications? If so, what should be modified?
  • Should the 2014 Election Rule be rescinded? If so, should the board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed? Election regulations that were in effect before the 2014 Election Rule’s adoption, or should the board make changes to the prior Representation Election Regulations? If the board should make changes to the previous Representation Election Regulations, what should be changed?

The board will consider responses until February 12, 2018.

Recent NLRB Announcements Could Signal Changes