The National Labor Relations Board General Counsel Peter B. Robb issued a guidance memorandum to the board’s staff that should help employers avoid litigating unfair labor practice charges filed by unions over filed grievances subject to arbitration.

In 2014, a case decision issued by the Obama-era NLRB imposed new requirements restricting an employer’s ability to defer an unfair labor practice charge to a grievance-arbitration procedure and as a result be able to postpone litigation or to avoid having to litigate the charge at all. The burdens on employers grew because unions could block deferral in many situations.

The new guidance issued by the Republican NLRB General Counsel strips away many of these restrictions and orders board staff to follow a new approach that encourages arbitration.

“He created a more evenhanded standard that focuses on whether the union has the ability to process the grievance to arbitration, rather than on whether the union agrees or desires to do so,” explains attorney William J. Kishman of the law firm of Squire Patton Boggs.

Robb also described in detail the new analysis that board officials should follow when they find themselves confronting this situation. In addition, Robb took the opportunity to urge that the new Republican-majority NLRB to formerly overturn the earlier board’s decision, an action Kishman believes is likely to occur.

The role of General Counsel at the board is much more powerful than at other agencies. Nominated by the Persident and approved by the Senate for a five-year term, the counsel helps set policy by choosing cases the board will review in setting new policy and by directing staff actions and priorities.