NLRB General Counsel Provides Glimpse Into New Policy Priorities

On December 1, Peter Robb, the newly-appointed general counsel for the National Labor Relations Board (NLRB), issued his Mandatory Submissions to Advice, a customary practice for all new general counsels, setting forth the types of unfair labor practice charges and issues that the NLRB’s regional offices should send to the NLRB’s Division of Advice in Washington D.C. before any regional action is undertaken.

While the list is long and varied, issues and case types that the regions should send to Washington for review are those that “involve significant legal issues [including] cases over the last eight years that overruled precedent and involved one or more dissents, cases involving issues that the Board has not decided, and any other cases that the Region believes will be of importance to the general counsel.”

Importantly Robb also rescinded six memos from former general counsels, including prior General Counsel Richard Griffin’s “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context” issued on January 31, 2017. GC 17-01, was “intended as a guide for employers, labor unions and employees that summarizes Board law regarding NLRA employee status in the university setting and explains how the Office of the General Counsel [would] apply these representational decisions in the unfair labor practice arena.”

The three decisions covered — Pacific Lutheran University, Columbia University and Northwestern University­­ — all had huge impacts on higher education, and the general counsel’s memo took the “prosecutorial” position that scholarship football players in Division I FBS private-sector colleges and universities are employees under the NLRA and that “students performing non-academic work who meet the common law test of performing services for and under the control of universities, in exchange for compensation, fall within the broad ambit of [NLRA’s definition of employee under] Section 2(3).”

Robb’s decision to rescind the aforementioned memo indicates that his view on student workers may be more in line with other Republicans who have opined on the issue than with Griffin.