Peter Robb, the new General Counsel for the National Labor Relations Board, issued a memo on December 1, 2017, indicating that he will ask the new Republican-controlled Board to overturn Obama-era rulings that expanded workers’ rights.
The memo rescinds several memoranda issued by the General Counsel during the Obama Administration, and mandates that regional offices submit cases involving “significant legal issues” to the NLRB Division of Advice prior to the Region filing its brief or statement of position with the Board. “Significant legal issues” include those decided “over the last eight years that overruled precedent and involved one or more dissents.”
The memo lists twenty-six holdings from Obama-era decisions as examples of issues that will, if presented in the future, require regional offices to submit the case to Advice for guidance. Such issues include employees’ right to use their employer’s email system to engage in concerted activity (Purple Communications); whether dues check-off obligations expire if the collective-bargaining agreement expires (Lincoln Lutheran of Racine); an employer’s duty to provide notice and an opportunity to bargain prior to imposing discretionary discipline on newly-represented employees who are not yet covered by a collective bargaining agreement (Total Security); and whether an employer’s unexercised control over another employer’s employees can establish a joint-employer relationship between the employers. (Browning-Ferris)
It is common practice for the General Counsel of the NLRB to require certain issues to be sent to the Division of Advice. General Counsel Robb’s memo differs from his predecessors’, however, in that it focuses exclusively on overturning decisions from the prior Administration. Unions should therefore use caution when relying on Obama-era Board precedent.