Watch The Pendulum Swing – NLRB’s Acting GC Rolls Back Predecessor’s Guidance Memoranda

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NLRB Acting General Counsel Peter Ohr is moving swiftly to put his stamp on national labor policy.   Last week, my partner Andrew MacDonald blogged about Ohr’s withdrawal of a complaint that had challenged the use of a neutrality agreement by an employer and a union.  Ohr also rescinded several General Counsel Memoranda issued by his predecessor that, according to Ohr, were “inconsistent” with national labor policy.   While the none of the withdrawn memoranda were particularly critical to employers’ labor relations prerogatives, the speed with which Ohr moved is notable, as is his pronouncement that national labor policy is “to encourage the practice and procedure of collective bargaining and the protection of workers’ exercise of their full freedom of association, self-organization and designation of representatives of their own choosing for [collective bargaining].”

Moreover, with regard to the withdrawal of certain Memoranda, Ohr’s actions might be seen as putting the interests of unions ahead of employees.   In this regard, Ohr withdrew GC 19-01, in which Ohr’s predecessor had sought a change in Board law to require unions raising a “mere negligence” defense to a “duty of fair representation claim” concerning a union’s grievance handling to establish the existence of established, reasonable procedures or systems in place to track grievances.   In practice, this means that unions who fail to properly handle employee grievances are less likely to be held accountable through the NLRB’s procedures.  Correspondingly, Ohr withdrew GC 19-04, which had urged the Board to require unions to be more transparent and accommodating to employees seeking to withdraw their authorization for union dues payroll deductions and GC 18-06, which was intended to facilitate employee participation in unfair labor practice cases involving union decertification.   Again, none of these decisions are particularly impactful to employers’ rights and prerogatives under the Act, but, collectively they move the needle somewhat in favor of unions.

Likely a harbinger of things to come at the Board . . . .

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