Memo From Labor Board’s Top Attorney Signals Change Is On Its Way

by Fisher Phillips

The newly installed General Counsel for the National Labor Relations Board published a memorandum late last week indicating that the General Counsel is preparing to push to reverse many of the controversial positions taken during the Obama era, restoring much-needed balance and tilting the labor law playing field back to a reasonable level. Peter Robb’s December 1 memo is a harbinger of significant changes to the agency’s enforcement posture going forward, and should give hope to employers across the country – not just those with unionized workforces – that change will soon be on the way.

In A Nutshell

The General Counsel’s memo might fly under the radar to some. On its face, it is merely a directive to all NLRB Regional Directors, Officers-in-Charge, and Resident Officers offering guidelines on the types of issues that may warrant “an alternative analysis” beyond existing Board standards. But the memo is no doubt intended to send a signal to employers and unions about what the near future may hold when it comes to certain significant and controversial positions adopted by the Board over the last several years. It was posted to the NLRB’s website, after all, available for all to see.

In the five-page memo, titled “Memorandum GC 18-02: Mandatory Submissions to Advice,” General Counsel Robb announces that he and the two new members of the Board (who provide a Republican majority for the first time in eight years) have not yet revealed their thoughts on many crucial labor law issues. And he reminds his direct reports that the Board “will base decisions on extant law, regardless of whether [we] may agree with the legal principles.” He instructs Board personnel, in fact, to issue complaints and process future cases “according to existing law.”

However, Robb then explains that he believes the Board should have a greater say in future cases involving “significant issues,” specifically including “cases over the last eight years that overruled precedent and involved one or more dissents” as ones that he believes are ripe for a second look. The memo goes on to provide a detailed but non-exhaustive laundry list of issues and cases that should be submitted to the Board’s Division of Advice for such a review.

Most importantly, the memo recommends that, in such cases, Board staff should also provide an “alternative analysis” besides an analysis of the matter under existing law, even in cases where a complaint has already issued (and so long as briefs have yet to be filed). Upon receipt of this alternative analysis, the Division of Advice will provide appropriate guidance on how to present the issue to the Board.

What Specific Issues Have Been Identified?

Several months ago, members of the Fisher Phillips Labor Relations Practice Group predicted the most significant topics that were expected to be revised for the better in the near future given the new direction of the Board. It is perhaps no surprise, then, that Robb included many of these same issues in his list of standards that could soon be overturned. They include three of the more troublesome positions that have been adopted by the Board in recent years:

  • Concerted activity for mutual aid and protection – The Board has expanded the type of activity that is considered protected by Section 7 of the National Labor Relations Act in recent years, including conduct where only one employee had an immediate stake in the outcome, and where an employee used obscene vulgarities to complain about his employer.
  • Use of company email systems – The infamous Purple Communications decision from 2014 held that employers – whether unionized or not – generally must allow employees to use corporate email systems during non-work time to engage in concerted and protected activity.

Beyond these three areas, Robb’s memo also identifies cases involving work stoppages, the joint employer standard, the perfectly clear successor standard, pre-contract discipline, discovery of witness statements, post-contract survival of dues-checkoff, social media postings, and back pay remedies as potential candidates for the alternative analysis, along with several other key topics. 

On top of that, the memo also formally rescinds a host of recent General Counsel Memos authored by the previous regime, including those pertaining to reconsideration of the current standard on withdrawals of recognition, inclusion of front pay in Board settlements, and the Board’s standard on default language within informal settlement agreements.  

What Does This Mean For Employers?

You should begin by getting in touch with your labor counsel as soon as possible to begin development of a proposed strategy in light of these circumstances. Your business – unionized or not – needs to be prepared for the new era of labor relations that will soon take shape, and that may take many forms. The Fisher Phillips Labor Relations Practice Group stands ready to usher employers into this new period.

Employers should still be prepared to take the same precautions they have developed to respond to the Board’s increasingly pro-union stances in the past several years, although the tide appears to be turning for the better. By virtue of his rescission of a number of controversial previous General Counsel Memos that had imposed specific enforcement postures on the Board Regions in several key areas, Robb has jumpstarted the process of changing the way the Board goes about its business.

Remember, though: as chief prosecutor for the agency, Robb does not have decision-making authority. That lies within the exclusive province of the five-member NLRB. And although one can assume that the newly reconstituted NLRB will be far more likely to give due consideration to any proposed alternative analyses given the makeup of the new Board members, employers will need to wait patiently as the Board goes to work.

However, you now have an avenue to present arguments as to why some of these troublesome positions should be scrapped in favor of a more rational and balanced approach. You should work closely with your outside counsel to develop an alternative analysis within your first substantive response to the Region, such as in position statements filed in response to applicable unfair labor practice charges. You may also consider doing so in cases that have already been agendaed for complaint or where a complaint has already issued, depending on the issue at play. Finally, with respect to the Memos that have been formally rescinded, you should work with your labor counsel to identify changes to your current practices that might be warranted, including revisions to standard language in settlements and other agreements.

Written by:

Fisher Phillips

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.