President Biden Moved Quickly To Re-Direct NLRB In First 100 Days

Jackson Lewis P.C.
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President Joe Biden was sworn into office on January 20, 2021. In just the first 100 days, the Biden Administration has begun its return to more labor-friendly policies, rules, and decisions, similar to those issued under the Obama Administration.

For example, on Day 1, immediately upon taking office, President Biden demanded that Trump-appointed National Labor Relations Board General Counsel Peter Robb resign from his post, and then summarily terminated him when Robb refused. The next day, Biden removed Robb’s replacement, the Deputy General Counsel, who had been named by the NLRB as Acting General Counsel. Biden also replaced Republican Board Member John Ring with Democrat Member Lauren McFerren as Chairperson of the NLRB.

By Day 5, Biden named Peter Sung Ohr to be Acting General Counsel. On February 1 (Day 12), Ohr issued Memorandum GC 21-02, rescinding multiple Trump-era NLRB General Counsel Memoranda, including GC 18-04 pertaining to handbook rules and GC 20-13 regarding neutrality agreements during union organizing drives. Ohr also signaled more changes were to come “in the near future.”

On February 4 (Day 15), the “Protecting the Right to Organize Act of 2021,” or the “PRO Act,” was introduced in the House of Representatives, seeking to legislate a host of labor-friendly rules and policy changes. It passed on March 9th, and awaits its fate in the Senate. Biden has promised to sign it, if given the opportunity.

In the meantime, on February 17 (Day 28), Biden nominated former union lawyer and NLRB Deputy General Counsel Jennifer Abruzzo as the new NLRB General Counsel.

Then, on February 24 (Day 35), new NLRB Chairperson McFerran explained that she believes the NLRB under the Trump Administration interpreted employee   rights under the NLRA in “the wrong direction.”

In addition, on March 31 (Day 71), Acting General Counsel Ohr issued a memorandum stating that his office will seek “vigorous enforcement” of employees’ Section 7 rights to engage in protected concerted activity.

President Biden has also issued dozens of Executive Orders, including one raising the minimum wage for federal contractors, and another Executive Order issued on April 26, 2021 (Day 97), regarding “Worker Organizing and Empowerment.” In that Executive Order, President Biden stated that, “[i]n the past few decades, the Federal Government has not used its full authority to promote” union organizing, and declares it “the policy of my Administration to encourage worker organizing and collective bargaining.” A task force was also established “to make recommendations regarding changes to policies, practices, programs, and other changes.”

The Biden Administration continues to quickly and decisively demonstrate its intent to reverse the prior Administration’s policies, rules, and decisions. Included among the Board’s priorities are issues concerning the lawfulness of handbook rules, the Board’s “joint employer” doctrine, company property and union access rights, “micro-units,” the Board’s “quickie election rules,” and the extent to which employees have a right to use company systems to engage in protected concerted activity. It is anticipated that after Republican Member William J. Emanuel’s term expires on August 27, President Biden will have a Democrat-majority NLRB, likely to expedite the Administration’s agenda.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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