NLRB Policy Shakeup: President Biden’s Notable Changes at the NLRB Could Signal a Change in Board Policy for Years to Come
NLRB Policy Shakeup: President Biden’s Notable Changes at the NLRB Could Signal a Change in Board Policy for Years to Come

President Biden Names Peter Ohr Acting General Counsel of the NLRB

Following the unprecedented firing of National Labor Relations Board (“NLRB”) General Counsel (“GC”), Peter Robb, on January 25, 2021, President Biden designated Peter Sung Ohr (“Ohr”) to serve as Acting GC of the NLRB.  Ohr, a career-long employee of the NLRB, began his career in the NLRB Honolulu Sub-regional Office as a Field Attorney, and in 2011, was appointed Regional Director of the NLRB’s Chicago Regional Office.  As Acting GC, Ohr’s term is limited to forty days. 

Since the NLRB’s GC is the individual who prosecutes unfair labor cases before the Board, the GC has significant influence in setting federal labor policy by determining what charges to pursue and what legal arguments to present to the Board.  These policies are usually articulated through NLRB GC Memoranda, which are distributed to NLRB Field Offices for implementation. 

Ohr went straight to work in his new role.  On February 1, 2021, Ohr issued Memorandum GC 21-02 (“Memorandum”), which rescinds ten separate NLRB GC Memoranda issued by his predecessor.  Most notably, Ohr’s Memorandum withdrew GC Memorandum 18-04 (Handbook Rules Post-Boeing), which provides guidance regarding the various types of employment rules, and separates them into three distinct categories set out in the then-recent Board decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017)).  Ohr’s Memorandum also withdrew General Counsel Memorandum GC 20-08, which controversially narrowed the scope of whistleblower protections for testifying employees.  “I have determined that a number of outstanding GC Memoranda are either inconsistent with Board policies and/or Board law, or are no longer necessary,” wrote Ohr.

Ohr’s Memorandum continued: “Section 1 of the [National Labor Relations] Act makes clear that the 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 purpose of negotiating the terms and conditions of their employment.  As a career employee of the NLRB, I have endeavored to effectuate this policy.”

More recently, Ohr filed a motion with the NLRB asking to dismiss a case aimed at changing the NLRB standard for determining the lawfulness of union displays of stationary banners and inflatable rats (more popularly known as Scabby the Rat) at the workplace of a neutral employer.  The legal issue in front of the NLRB on this matter has been whether these banners and inflatable rats are considered “picket lines,” and therefore whether such demonstrations are unlawful.  The NLRB has been considering “Scabby the Rat” cases for over 19 years.  During that time, Republican-appointed GCs have pressed to find use of Scabby the Rat (or bannering) to be unlawful, while Democrat-appointed GCs have moved to find such use lawful.  The issue is now ripe for the Board to decide.  However, any decision will likely be appealed and could end up in front of U.S. Supreme Court.

President Biden Nominates Jennifer Abruzzo General Counsel of the NLRB

Then on February 17, 2021, President Biden nominated Jennifer Abruzzo (“Abruzzo”) to replace Ohr as General Counsel of the NLRB at the end of Ohr’s temporary term.  Abruzzo has spent almost twenty-three years working for the NLRB in various capacities, including as Field Attorney, Deputy Regional Attorney, and Deputy Assistant General Counsel.  The White House described Abruzzo as “a tested and experienced leader, [who] will work to enforce U.S. labor laws that safeguard the rights of workers to join together to improve their wages and working conditions and protect against unfair labor practices.”

If confirmed by the U.S. Senate, Abruzzo will be the first woman to serve as NLRB GC.  However, Abruzzo’s Senate confirmation could get contentious given the controversial nature of Robb’s removal.  Many pro-employer groups are arguing President Biden did not have the authority to remove Robb, rendering everything recently executed by Ohr tainted.  This could cause delay for Abruzzo’s confirmation hearing. 

As for Abruzzo, her most recent work as a special counsel to the Communications Workers of America, the largest communications and media labor union in the U.S., may come up during the hearing as point of contention about her neutrality.  While Abruzzo’s work for a labor union may not be a deal breaker in the Senate for Abruzzo to be confirmed as NLRB’s GC, Senate Republicans may use this against her as evidence of a hidden agenda during her confirmation hearing.  As such, much is left to be determined. 

How Will These Actions At The NLRB Affect Employers?  

Many of the policies outlined in Robb’s General Counsel Memoranda were known as being “employer-friendly,” insomuch as they included more aggressive standards to prosecute unions, reined in employee rights, and gave employers more leeway to avoid prosecution. 

With the Biden Administration taking control, the tide of NLRB policy appears to be shifting back towards, expansion of employee rights, removing perceived obstacles and delay to union organizing, as well as heightened prosecution of employers for interference with employee rights—as it was under the Obama Administration.  As a result, employers should expect to see an NLRB that may be more lenient when dealing with alleged misconduct by unions.

Employers who face dealing with the NLRB should stay tuned to see how these issues develop and how they may affect labor relations strategy and positions to be taken by all parties on legal issues that arise.

Please contact the authors or your counsel at AALRR if you have any questions.

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