In our October 11, 2017 Employment Law Alert, The NLRB Pendulum Is About to Swing, we indicated that with a Republican majority for the first time in over decade, the National Labor Relations Board was poised to overturn a number of “labor-friendly” cases that were decided during the Obama Administration. That process was set in motion on December 1, 2017, when new NLRB General Counsel Peter Robb issued GC Memorandum 18-02 (the “Memorandum”), setting out a broad agenda to revisit many Obama-era decisions. The Memorandum instructed the Board’s Regional Offices to seek “alternative analysis” from the NLRB's Division of Advice on a range of issues before issuing Complaints, including on matters involving joint employer status, employee handbook rules, and more.
Last week, the reversals began – and since then, the Board has issued five new cases, all decided by a 3-2 majority along party lines. The latest decision came in just under the wire before Republican appointee Board Chair Miscimarra’s term expired on Saturday, December 16. While the NLRB pendulum will continue to swing, we may see a short lull until a new Board member is confirmed to replace Chair Miscimarra.
In the meantime, here’s an overview of the new reversals.