More Obama NLRB Decisions May Be Ditched

New NLRB general counsel’s memo provides blueprint for Republican board

Allen Smith, J.D. By Allen Smith, J.D. January 4, 2018
More Obama NLRB Decisions May Be Ditched

​The recent overturning of several significant Obama National Labor Relations Board (NLRB) decisions—such as cases involving employee handbooks, joint employers and micro-bargaining units—could be just the start of an NLRB tilt in favor of employers.

Peter Robb, the new Republican general counsel for the NLRB, signaled an interest in overturning more than two dozen Obama board decisions in a Dec. 1, 2017, memo that has drawn fire from Senators Patty Murray, D-Wash., and Elizabeth Warren, D-Mass.

"One of your responsibilities as the sole enforcer of the NLRA [National Labor Relations Act] is to adapt the statute to ever-changing economic conditions. However, your memo, striking in its breadth, suggests that your office will scale back its efforts to discharge that responsibility," the senators wrote Dec. 12. "The Trump administration has a troubling track record of undermining worker protections, and we are deeply concerned that your policy changes will ultimately enable bad actors to violate workers' fundamental labor rights with impunity."

[SHRM members-only HR Q&A:  What is the function of the NLRA?]

However, David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, said, "The memo was more than justified given the multitude of precedent-changing decisions issued by the NLRB under the prior administration."

Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla., said the cases Robb is targeting "were designed to wildly expand the scope and jurisdiction of the board far beyond what the original act intended."

Targeted Decisions

Henry Warnock, an attorney with FordHarrison in Atlanta, said that there are four decisions noted in the memo that, if overturned, would clarify that an employer may:

  • Lawfully terminate an employee who refers to his or her supervisor on Facebook in outrageously obscene language. In Pier Sixty (2015), the NLRB held that a worker's Facebook post calling his supervisor a "nasty mother f-----" and writing "f--- his mother and his entire f------ family!" was protected, concerted activity under the NLRA.
  • Restrict the use of its e-mail system for work only. In Purple Communications (2014), the board ruled that employers must let employees use company-owned e-mail to communicate about union issues.
  • Prohibit off-duty employees from picketing on its property directly in front of its doorways. In Capital Medical Center (2016), the board held that off-duty employees could picket at the doors of an employer—in this case, a hospital—unless the hospital demonstrated that the picketing harmed patient care. "Most people who are entering a hospital are doing so because either they, or a loved one, has some sort of an ailment," said Warnock, who represented the medical center. "The last thing they need during such a time is to encounter a picket line as they try to walk into the facility." Moreover, the board's holding gives little weight to an employer's property rights and ability to maintain peace and order on its premises, he added.
  • Suspend or terminate an employee before entering into a collective bargaining agreement without bargaining with a newly certified union over the decision. In Total Security (2016), the board held that during the period after an election but before the collective bargaining agreement has been reached, an employer must notify and bargain with a union over every discretionary suspension or termination. "For larger employers with high turnover, this decision creates a tremendous burden on employers," Warnock said.

Pryzbylski said Robb also is considering reversing Obama board case law to allow employers to withhold witness statements in workplace investigations to prevent retaliation.

'Dues Check-Off' Decision

Labor agreement clauses that authorize unions to collect union dues directly from employees' paychecks (so-called dues check-off provisions) may sunset at the expiration of a collective bargaining agreement, if Robb has his way once there again is a Republican majority on the board. Currently the board is evenly divided with two Democrats and two Republicans. A Republican is expected to be nominated to the vacant seat.

If the union has ongoing dues flowing, it has less of an incentive to settle disagreements and reach a contract, said Michael Lotito, an attorney with Littler in San Francisco and co-chair of its government affairs branch, the Workplace Policy Institute.

Lincoln Lutheran of Racine (2015) established that the dues check-off obligation survives the expiration of a collective bargaining agreement. Overturning this decision would be important because the opinion eliminated an important economic weapon for unionized employers during negotiations for a new agreement, noted Howard Bloom, an attorney with Jackson Lewis in Boston.

Harry Johnson III, an attorney with Morgan Lewis in Los Angeles and former NLRB member, cautioned that Robb may seek modification of the Obama board decisions rather than complete reversal. Johnson said that modification or reversal "may take some time, as the memorandum makes clear, the general counsel is not going to change positions in cases already briefed to the board or in the federal courts."


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