- In a memo to National Labor Relations Board (NLRB) staff, the agency's newly installed general counsel invited regional directors to escalate cases on, among other things, joint employment and disrespectful conduct — two areas in which the Board adopted employee-friendly stances during the Obama administration.
- The letter signals that Peter B. Robb, who is responsible for bringing cases to the Board, will ask it to overturn these and other precedents, according to attorneys at Jackson Lewis.
- Broadly, the memo requests that regional offices send cases that involve issues on which the NLRB, during the last eight years, overruled precedent and that involved one or more dissents.
Robb's stance isn't unexpected. In fact, the NLRB has only taken this long to start shifting its positions because the previous general counsel's term didn't expire until last month.
It remains to be seen, however, just whether and when this shift might happen. After all, the Board needs cases to issue rulings. And, while Republicans enjoy a 3-2 majority for the moment, chair Philip Miscimarra's term expires this month and he has said he isn't seeking a second term. This will leave the Board with a 2-2 split until President Trump can get a replacement confirmed by the Senate.
Separately, employers are expected to receive some guidance on those issues soon, outside of NLRB opinions. The D.C. Circuit Court of Appeals is poised to shed some light on what type of arrangement creates a joint employment relationship under the National Labor Relations Act. And, while it's unclear whether new leadership will follow through with the plan, NLRB recently said it would release joint guidance with the U.S. Equal Employment Opportunity Commission to address what some say is a conflict between an employer's responsibility to protect workers from harassment and the requirement that it refrain from interfering with workers' rights to engage in concerted activity in an effort to improve their working conditions.