The Biden Administration: Expected Changes At The NLRB

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Transitions between administrations are always about change, in policies as well as personnel. Historically, the decisions of the National Labor Relations Board (NLRB) shift with changes in administrations and presidential appointment of NLRB members and positions in the Office of the General Counsel. Given President Joe Biden’s commitment to strengthening labor laws on behalf of workers, the Husch Blackwell Labor & Employment group anticipates dramatic shifts in labor law interpretation, which may cause disruptions to business operations as employers negotiate these changes. Indeed, President Biden, in an unprecedented move, fired the NLRB’s General Counsel the day after his inauguration, and appointed a more union-friendly Acting General Counsel, Peter Sung Ohr.

How a personnel shake-up at the NLRB foreshadows significant labor law changes

On January 20, 2021, within hours of the inauguration ceremony, President Biden demanded the resignation of then-NLRB General Counsel Peter Robb. When Mr. Robb, an appointee of President Trump, refused to resign, President Biden immediately fired him, ending his tenure months before the expiration of his term. The Biden Administration issued a similar demand to then-Deputy General Counsel Alice Stock. Ms. Stock, who by then had assumed the role of Acting General Counsel, refused to resign and was also fired by President Biden the next day.

President Biden named Peter Sung Ohr as Acting General Counsel effective January 25, 2021. Mr. Ohr, a career employee of the NLRB, previously served as the Regional Director at the NLRB’s Chicago Regional Office. Mr. Ohr has quickly moved to reverse Mr. Robb’s legacy by rescinding 10 of Mr. Robb’s advice memoranda and attempting to withdraw from multiple active cases. 

The legality of Mr. Robb’s removal by the Biden Administration is being actively challenged across the United States, as employers with matters pending before the NLRB are filing briefs alleging that Mr. Robb’s termination was unlawful. The NLRB has not yet substantively addressed these challenges.

While it is normal for the NLRB to focus on new policies after a partisan transition of power, our legal team expects a more extreme pendulum swing in the coming months as President Biden attempts to permanently fill the General Counsel role and replace Trump-appointed member William J. Emanuel, whose term ends August 27, 2021. The Biden Administration has not yet nominated a replacement to fill Mr. Emanuel’s seat.

The future of the NLRB General Counsel Office

On February 17, 2021, President Biden nominated Jennifer Abruzzo for NLRB General Counsel. Ms. Abruzzo, a former Deputy General Counsel at the NLRB, currently serves as legal counsel for the Communication Workers of America.

If confirmed, we anticipate that Ms. Abruzzo will focus on reinstating and expanding overruled Obama-era NLRB holdings that favor labor organizations and employee rights on a variety of topics, including invalidating facially neutral workplace rules (e.g., rules prohibiting “abusive language” or requiring “workplace civility”), union access to employer IT systems, the legality of micro-bargaining units, dues checkoff obligations and the joint employer standard.

Ms. Abruzzo’s nomination hearing occurred on April 29, 2021. As expected, the hearing turned contentious with criticism over the circumstances surrounding Mr. Robb’s removal.

What this means to you

President Biden promised to be the most pro-union president ever, and his moves since his election have added substance to that promise. Just days ago, President Biden issued an executive order to form a task force led by Vice President Kamala Harris that is charged with recommending ways the administration can use existing policies and develop new ones to support organized labor.

There seems little doubt that the administration will use its full influence to enhance the opportunity for employees of non-union employers to turn to the NLRB for new rights and to challenge employer actions and policies. Even more daunting for employers, the administration’s efforts may embolden unions to step up efforts to organize new bargaining units.

Tracey Oakes O’Brien, Labor Content and Knowledge Manager, is a co-author of this content.

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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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