Should a court find that President Biden’s ouster of Robb was unlawful, Ohr’s actions and decisions could be tainted and ultimately be determined to be unlawful.
As the National Labor Relations Board (NLRB) is one of the most political government agencies, it was a virtual guarantee that President Joe Biden’s election would bring major changes to labor law. On February 1 and 2, 2021, the Biden NLRB took its first major actions when Acting General Counsel Peter Sung Ohr rescinded 10 General Counsel Memorandums and two Operations-Management Memorandums issued by former General Counsel Peter Robb, suggesting that they are inconsistent with the federal labor policy he intends to effectuate. His statements and actions serve as a preview of decisions he will likely seek to have reversed or modified in favor of more union-friendly policies in the months and years ahead.
Background
Within hours of his swearing-in, President Biden requested that then-General Counsel Peter Robb (who was nominated by and served under President Donald Trump) resign from his post. Robb still had another 10 months remaining in his Senate-appointed position, and refused. President Biden then dismissed Robb effective immediately.
Upon Robb’s discharge, Deputy General Counsel Alice Stock became the Acting General Counsel. President Biden likewise demanded that she resign, which she refused. And so, two days after he dismissed Robb, President Biden also dismissed Stock. It is unclear whether Robb and Stock will challenge their respective dismissals, as their forced ousters may have been unlawful. The National Labor Relations Act specifies that the President shall appoint the General Counsel, with the advice and consent of the Senate, for a term of four years. Unlike with Board Members, there is no specified procedure for removing the General Counsel prior to the end of the four-year term, which could mean that the President did not have the authority to discharge the General Counsel unilaterally.
On January 25, 2021, President Biden appointed Peter Sung Ohr, who was the head of the NLRB’s Chicago office, as Acting General Counsel. Ohr is a career employee of the NLRB, having worked at the agency since 1997. He previously served as Deputy Assistant General Counsel in Washington, D.C., from 2006 until 2011 and had been serving as the Chicago Regional Director for the past nine years.
Rescission of Memorandums
In Ohr’s introduction of General Counsel Memorandum No. 21-02, he stated:
[T]he policy of the United States is to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of their full freedom of association, self-organization, and designation of representatives of their own choosing for the purposes of negotiating the terms and conditions of their employment.
Ohr further stated that as a career employee of the NLRB, he has endeavored to effectuate this policy and plans to do so as Acting General Counsel. He then justified his rescissions of Robb’s memos explaining “a number of outstanding General Counsel Memoranda are either inconsistent with the above-described policies and/or Board law, or are no longer necessary.”
Should a court find that President Biden’s ouster of Robb was unlawful, Ohr’s actions and decisions could be tainted and ultimately be determined to be unlawful.
A few rescissions worth highlighting for employers:
Guidance for Boeing
Ohr has rescinded GC 18-04, Guidance on Handbook Rules Post-Boeing (June 6, 2018), which provided guidance to employers about how the NLRB analyzes employer policies in relation to employees’ Section 7 rights. GC 18-04 provided explanations and examples for employers to help navigate Board precedent after the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (December 14, 2017), which gave employers more leeway in enacting work rules without risking a potential violation of Section 7 of the National Labor Relations Act (NLRA).
Ohr explained that he was rescinding GC 18-04 because the Board had issued subsequent cases interpreting the Boeing decision, so the GC 18-04 was no longer needed. Though there have been subsequent decisions, this memorandum filled in the gaps for employers and was an important resource for determining whether certain types of policies are permissible under the NLRA. The rescission of GC 18-04 strongly suggests that the Biden Board is planning to rein in the Boeing policy standards and look for opportunities be more critical of employer policies that address employee workplace conduct. A return to the framework in the Board’s prior decision, Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004), is certainly possible. This decision led the Obama Board to reject employer policies (such as civility rules) if employees would reasonably construe the language of the rule to prohibit Section 7 activity.
Instructions for Deferral
Ohr has rescinded GC 19-03, Deferral under Dubo Manufacturing Company (December 28, 2018), which provided instructions to regional offices relating to the deferral of unfair labor practice charges to arbitration. GC 19-03 had expanded the circumstances under which a region would defer a charge to arbitration.
By way of background, there had already been a fair amount of back and forth on the issue of deferral. The Obama Board restricted the circumstances under which it would defer a charge to arbitration or defer to an arbitrator’s decision in Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014). But, the Board in Babcock did not analyze, or apply its new standard, to pre-arbitral deferral where the charging party has already initiated a grievance procedure, referred to as Dubo deferral. The General Counsel under President Obama issued a memorandum in 2015, applying the Babcock standard to Dubo deferral cases, and then Robb rescinded that memorandum, arguing that the Babcock standard should not apply. Rather, Robb’s GC 19-03 established that the test for Dubo deferral was whether there was a reasonable possibility that resolving the grievance would resolve the underlying controversy in a manner consistent with later review. Subsequently, in 2019, the NLRB overruled the Babcock decision in UPS, Inc., 369 NLRB No. 1 (December 23, 2019).
Ohr explained that he was rescinding GC 19-03 because the UPS decision made GC 19-03 “outdated.” In light of the rescission, he directed regional offices to follow the procedures in Section 10118.1(c) of the Unfair Labor Practice Casehandling Manual, a document under the purview of the General Counsel’s Office. This rescission not only suggests that Ohr may have plans to revise the Casehandling Manual as it pertains to deferrals, but also indicates that the deferral of charges will be a prioritized policy concern under the Biden administration, potentially resulting in greater prosecution of unfair labor practice charges.
Standards for Neutrality Agreements
Ohr has rescinded GC 20-13, Guidance Memorandum on Employer Assistance in Union Organizing (September 4, 2020), which required regions to urge the Board, in charges involving union neutrality agreements, to apply the same standard in assessing the lawfulness of employer support for union organizing drives as it does to such support for employee decertification efforts. In general, when the Board is assessing whether an employer unlawfully supported a union’s organizing efforts, it considers the “totality of the circumstances.” Yet, in cases involving employer support for decertifications, the Board utilizes a different, more stringent standard of whether the employer provided “more than ministerial aid.” Robb’s GC 20-13 tried to encourage the Board to reconsider these inconsistent standards.
The rescission of GC 20-13 suggests that Ohr does not support an equalization of the standards, and also indicates that the Board likely will not seek to address or in any way remedy the inconsistencies. In essence, this will allow the double standard to continue, wherein employers may assist union organizing drives through the provision of information and support by way of neutrality agreements (aka labor peace agreements), while any assistance to employees in their decertification efforts beyond ministerial aid will be unlawful. Unions have increasingly pressured employers to enter into neutrality agreements, which typically lead to card check agreements or elections where the end result is unionization.
Conclusion
Ohr concluded the General Counsel Memorandum by stating, “Future memoranda setting forth additional new policies will issue in the near future.” He did not indicate what new policies might be forthcoming, but his statement suggests they may be imminent.
What This Means for Employers
Employers can expect additional major changes and shifts in position from the NLRB, which will likely seek a return to Obama-era interpretations and precedent. Employee use of employer email, a more employee-friendly joint employer standard, the return to “quickie” election rules and stricter enforcement of whether workplace rules violate Section 7 are all possible changes that may come from the Biden NLRB. That being said, these changes will take time, as President Biden will not have the opportunity to change the NLRB to a Democratic majority until the end of the summer when Republican Board Member William Emanuel’s term expires and it can take time for precedent-changing cases to work their way up to the NLRB. We will continue to provide updates as major NLRB developments occur.
For More Information
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