Insiders speculate about cause of Smith case transfer
The use of the Division of Advice isn’t unusual, but in this case it could be indicative of a change in approach by Robb, said Mark Neuberger, an attorney for Foley & Lardner LLP who isn’t involved in the case.
Former UFC bantamweight Leslie Smith is a central part of Project Spearhead, an effort to unionize fighters. She was recently released by the league under unusual circumstances, and on May 2nd filed a complaint with the National Labor Relations Board. Late last month her attorney Lucas Middlebrook said the regional director had made a determination that Smith’s claim that UFC fighters are employees not independent contractors had merit and that the allegation of discrimination against Smith had merit. A complaint against the UFC was to be issued within a month, barring a settlement.
However, shortly afterward, Middlebrook said the case was in a “holding pattern’ and had to go through the NLRB’s Division of Advice at the request of the NLRB headquarters in Washington, D.C. The belief was expressed that the change could have been the result of the UFC pulling strings at the national level. However, a report from Jaclyn Diaz for Bloomberg Law suggests it might instead be the result of a change in policy that predates Smith’s complaint, or not.
NLRB General Counsel Peter Robb sent regional directors a memorandum in December encouraging them to seek Division of Advice input in cases that present novel legal theories. In the same memo, he rescinded a memo issued by his predecessor that said an employer’s misclassification of employees as independent contractors violates the National Labor Relations Act.
But the way in which this case went from Region 4 to the Division of Advice has some employer-side attorneys wondering if there’s something deeper happening.
The use of the Division of Advice isn’t unusual, but in this case it could be indicative of a change in approach by Robb, said Mark Neuberger, an attorney for Foley & Lardner LLP who isn’t involved in the case.
Robb said in January that he was considering a change to the regional office system that could include more oversight from Washington, according to a memo by regional directors. Robb said publicly during a labor law conference in June that he’s considering a reorganization to accommodate continued budget cuts. Consolidating the regional offices would cause too much upheaval, he said June 7.
The issue of employee misclassification would be ripe for advice anyway as it has been tackled by Robb’s predecessor, according to William Gould, a former NLRB chairman. But Gould agreed with Neuberger that the way this case was handled suggests it is part of this overall centralization approach reflecting Robb’s philosophy at the NLRB.
The move toward the Division of Advice may be beneficial to the employer as it delays the proceedings and holds off a complaint against the UFC.
An employer doesn’t want a complaint issued. That’s the employer’s goal anywhere, Neuberger said.