Labor Relations Law Blog

The Board itself, which has five seats, currently has two members (Chairman Marvin Kaplan and Member David Prouty).  Three Board members are required for a quorum to decide litigated cases and to approve new regulations.  Two recent appointments were announced and await Senate confirmation hearings.  With Chairman Kaplan’s term ending in late August and his announcement he will not return, the Board may be down to one member by the end of this month. 

The day-to-day operations of the Agency continue at Regional Offices across the country and NLRB’s headquarters in Washington, DC.  A nominee for the General Counsel position awaits action in the confirmation process.  In the meantime, day-to-day operations are run by Acting General Counsel William Cowen, who previously served as Regional Director of the downtown Los Angeles NLRB Region 21 Office. 

Mr. Cowen has made several noteworthy changes to NLRB policy, having immediate effect on pending cases.  They include the following: 

1. Rescinding numerous policy memoranda from the previous General Counsel, Jennifer Abruzzo, on numerous issues seeking to expand NLRB’s role, labor law rights, and remedies;
2. Taking a more clear and analytical approach to NLRB’s make-whole remedies for violations of the Act, with an emphasis on showing that unlawful conduct caused specific harms;
3. Announcing that surreptitious recordings in collective bargaining would be viewed as unlawful;
4. Providing new guidance for analysis of salting cases; and
5. Restoring reliance on “deferral” rules, which allow matters alleged in Unfair Labor Practice charges to be resolved by grievance-arbitration processes. 

Further developments in policy are expected from the Acting General Counsel and a new General Counsel, once confirmed.  And as NLRB members are confirmed, we will see case decisions which will very likely provide platforms for the NLRB to change applicable labor law rules on a variety of hot topic issues in both unionized and nonunion workplace settings.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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