Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here and here to find prior posts.
Last week’s issuance of General Counsel Memo 18-02 gives companies hope that the Obama Board’s controversial successorship precedents may be reversed. General Counsel Robb directed that successorship cases involving the following decisions be submitted to Advice for review: GVS Properties, LLC, 362 NLRB No. 194 (2015); Nexeo Solutions, LLC, 364 NLRB No. 44 (2016); Creative Vision Resources LLC, 364 NLRB No. 91(2016). Each case merits reconsideration.
Successorship: Whether an asset buyer has a duty to bargain depends on whether (1) a majority of the buyer’s workforce consists of the former employees of the seller, (2) the buyer’s “operational structure and practices differed from those of” the seller, and (3) the unit would no longer be an appropriate one. NLRB v. Burns Int’l Sec. Servs, Inc., 406 U.S. 272 (1972). Even if the buyer is a Burns successor that must recognize and bargain with the union, it is free to set initial terms and conditions of employment unless it is a “perfectly clear” successor: “[T]here will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees’ bargaining representative before he fixes terms.” Id.
GVS Properties: In GVS Properties, an asset buyer required by a local law to retain the predecessor’s workforce for a certain initial time period was found to be a Burns successor even though it had no choice in whom to hire. Dissenting Board Member Johnson argued that, based on Fall River Dyeing v. NLRB, 482 U.S. 27, 40-41 (1987), a buyer can become a successor only if it does so voluntarily, i.e., if it makes a “conscious decision” to hire a majority of the predecessor’s employees. When a worker retention statute applies, the Burns test could thus only be applied upon the expiration of the state mandated employment period, after the employer could freely choose whether and how many of the predecessor employees to retain.
The Board majority disagreed, claiming that GVS made its...
