The NLRB's Successorship Doctrine, Perfectly Clear Successors, Executive Order 13495, and Worker Retention Laws: What the Trump Administration Has Inherited

In such a scenario, the new contractor knows, from the time the contract is awarded, it will offer a right of first refusal to all or substantially all of the predecessor employees. [...]if a new contractor wants to avoid "perfectly clear" successor status under existing Board law, it must announce its intent to change terms and conditions of employment by no later than the time it affirmatively offers predecessor employees the right of first refusal required by E.O. 13495.102 However, even that may be too late under new direction in which the Obama Board has moved the "perfectly clear" successor analysis. According to the majority, the ALJ and Member Miscimarra improperly "ignored Board decisions clarifying that, to preserve its authority to set initial terms and conditions of employment unilaterally, a successor must clearly announce its intent to establish a new set of conditions prior to, or simultaneously with, its expression of intent to retain the predecessor's employees. "216 To Miscimarra, the Board should have considered February 17-not November 7-as the date to determine if the purchaser was a "perfectly clear" successor. Under the rationale of the GVS majority, the "decision" to retain predecessor employees effectively is made when an employer chooses to purchase a business or operation with actual or constructive knowledge of the requirements of a state or local retention law. [...]despite the majority's efforts to assuage the dissent's concerns, it is not difficult to see how the Obama Board could find an employer that purchases a business or operation subject to a worker retention law automatically would become both a "successor" and a "perfectly clear" successor, unless the employer clearly announces its intent to change terms and conditions of employment in its first communication with employees.