Acting NLRB General Counsel Rescinds Policy Guidance, Signals More Changes To Come

Jackson Lewis P.C.
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New National Labor Relations Board (NLRB or Board) Acting General Counsel Peter Sung Ohr has wasted no time. In a February 1, 2021, Memorandum, Ohr announced rescission of 10 individual policy directives issued by Peter Robb. President Joe Biden terminated Robb as NLRB General Counsel shortly after his inauguration.

Why this is important

NLRB General Counsels use policy memoranda to instruct Board investigators and lawyers how to process certain cases, set enforcement priorities, and prepare cases to shape the Board’s position on critical labor law interpretations.

New General Counsel, New Direction

In the memorandum, Ohr rolled back Robb’s directives because they were 1) “inconsistent” with the Board’s goal of encouraging collective bargaining and protecting workers’ rights under the Act or 2) “no longer necessary.” Among the notable memoranda rescinded are:

  • Robb’s comprehensive direction for analysis of employer policies that could affect employee rights under the National Labor Relations Act following the Board’s decision in Boeing Co., 365 NLRB No. 154 (2017), which was much-lauded by employers. Ohr said the rescinded memorandum was not necessary as the NLRB has issued sufficient decisions providing guidance. Some speculate that this may be an encouragement to bring cases to the Board for possible reversal of Boeing.
  • A memorandum directing regions to bring cases to the Board involving “neutrality agreements” in which an employer allows organizing activities or negotiates terms of a collective bargaining agreement before the union is lawfully recognized. GC Robb’s intent was to encourage the Board to lower the threshold for finding unlawful support of the union.
  • Several directives that placed more stringent burdens on unions, including:
    • A memorandum requiring unions raising a “mere negligence” defense to a duty of fair representation charge to show they maintained reasonable procedures to track grievances, and classifying a failure to respond to a grievant’s inquiries as unlawful arbitrary conduct;
    • Guidance requiring regions to bring cases to the Board urging an easing the burden of proof on employees bringing cases alleging a violation of the union’s duty of fair representation;
    • A directive instructing Board regions to promote cases that would require unions to provide detailed explanations of membership dues and other obligations in fee objector cases.
  • A memorandum that placed additional limitations on how Board investigators may utilize audio recordings and other evidence.

At the end of his memorandum, Ohr noted he would issue future memorandum setting new policies “in the near future.” Ohr’s swift action signals a change in the agency’s strategy and priorities, which, albeit abrupt here, typically occurs during a transition to a new administration of a different political party.

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