Other NLRB Reversals of Obama-Era Policies

Written on March 27, 2020.

While the above three cases involving a return to pre-Obama NLRB precedents are perhaps the most heavily publicized, there are other less publicized but also important reversals. Thus, the new majority has returned to earlier cases giving NLRB administrative law judges the discretion to approve settlement terms proposed by a respondent (usually the employer) over the objection of the NLRB General Counsel and the charging party (usually the union). UPMC Shadyside Hospital, 365 NLRB No. 153 (2017). Further, the new NLRB majority has given employers more leeway to make changes based on past practices such as changes in healthcare benefits without bargaining to impasse with the union. The new majority rule is that such actions do not constitute a change if they are similar in kind and agree with an established past practice consisting of comparable unilateral action. Raytheon Network Centric Systems, 365 NLRB No. 161 (2017). In still another ruling, the new Board members indicated in a footnote that the policy allowing for the halting of a union election if a union files unfair labor practice charges against the employer might soon be changed by a Republican-majority NLRB. ADT Security Services, a case involving a union decertification election. Further, on December 15, 2017, the Board voted to issue a request for comments on revising or rescinding the NLRB "quickie election" rule, which has resulted in the reduction of the time period from the filing of a union petition for an election to the election day itself, from about 40 days to about 21 days.

Many likely changes in Board policy can be predicted from a memo to field offices sent out by the new NLRB General Counsel Robb, on November 8, 2017, which directs the NLRB regional officers to consult his office on cases involving precedent set on workers’ rights in the last eight years and others involving "significant legal issues." This directive also rescinded seven agency guidance memos issues by his predecessor.

It should be noted, however, that since Republican-appointed member Miscimarra left the Board on December 16, 2017, no reversals of Obama-era precedent are likely to occur until a new Republican-appointed member is confirmed.