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NLRB working overtime to level the playing field

On Friday, Dec. 1, 2017, Peter B. Robb, the newly appointed and confirmed General Counsel for the National Labor Relations Board (NLRB), issued a memorandum to all NLRB Regions outlining his key legal interpretation priorities (click on “Mandatory Submission to Advice”). Through this memorandum, Robb directed all Regional Directors to submit for advice any cases that touch on the legal issues he identified in the memorandum.

Specifically, Robb directed the Regions to submit cases touching on many of the controversial decisions issued by the Obama-era NLRB, including, but not limited to:

While many commentators viewed this memorandum as the NLRB overturning Obama-era rulings, that is not a correct characterization. However, this memorandum is an indication that the new General Counsel and NLRB have many Obama-era rulings in their sights.

The NLRB submitted Exhibit A supporting this conclusion on Dec. 14, 2017, when the NLRB overturned a 2004 ruling that set forth the NLRB’s standard for reviewing employer policies. The Obama-era NLRB relied heavily on Lutheran Heritage Village-Livonia to support further intrusions into non-unionized workplaces and used that case to justify attacks on facially neutral employer policies. Under the Lutheran Heritage standard, the Obama-era NLRB found most facially neutral policies unlawful because, according to the NLRB, they could be “reasonably construed” to apply to activities protected by the National Labor Relations Act (NLRA). In Boeing Co., the new NLRB set a standard that strikes a balance between an employer’s asserted business justifications and an employee’s rights under the NLRA.

Exhibit B came into focus soon after with the NLRB’s decision in Hy-Brand Industrial Contractors, Ltd. In this ruling, the NLRB returned to a joint employer standard that requires the alleged employer to have “direct and immediate” control over the employees. Under the Obama-era standard, the NLRB ruled that the alleged employer simply needed “indirect control,” even if such control was not actually exercised.

If these two decisions by the Trump-era NLRB are any indication, the most controversial Obama-era rulings may be short-lived.

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume VIII, Number 9


About this Author

Rufino Gaytán, Labor & Employment Attorney, Godfrey Kahn Law Firm "

Rufino Gaytán is an associate member of the firm's Labor & Employment Practice Group in Milwaukee. Rufino assists private and public employers in addressing general human resource issues and counsels employers in every aspect of labor and employment law. In particular, Rufino provides assistance with discrimination claims, wage and hour issues and drafting and enforcing restrictive covenant agreements. Rufino also represents clients before the Equal Employment Opportunity Commission and the Wisconsin Equal Rights Division.