Hunton Andrews Kurth LLP
  February 12, 2021 - United States of America

Changes Afoot at the NLRB Under the New Administration

With the ushering in of a new administration, several changes have quickly taken place at the National Labor Relations Board (NLRB).

Within hours of taking office, the Biden administration removed Trump appointee NLRB General Counsel Peter Robb and replaced him with interim General Counsel Peter Ohr.  (Ohr may only serve as acting General Counsel for 40 days, per the National Labor Relations Act, unless the administration submits a nomination to the Senate.)  At least one employer has already sought the dismissal of an unfair labor practice charge arguing that Ohr lacks authority to prosecute the case because Robb was unlawfully removed prior to the expiration of his term.

Biden also replaced Republican appointee John Ring as the chairman of the NLRB with Democrat appointee Lauren McFerran.  Ring will remain a sitting member of the Board until December 16, 2022.  The Board remains composed of three Republican appointees, one Democrat appointee, and one vacancy.  At the expiration of Republican appointee William Emanuel’s term on August 27, 2021, the Biden administration will have the opportunity to regain a Democratic majority control of the Board.

Since taking over, Acting General Counsel Ohr has rescinded ten General Counsel Memoranda and two Operations-Management Memoranda from the Trump-era, on the grounds they are either inconsistent with Board policies and/or Board law, or are no longer necessary.  His office has also indicated that there will be a focus on more vigorous outreach, particularly to non-traditional labor communities.

Most notably, the following memoranda were rescinded:

  • General Counsel Memo 18-04, Guidance on Handbook Rules Post-Boeing, which provided guidance to employers on the placement of various types of employer rules into three categories set out in the Board’s 2017 decision in The Boeing Company, 5 NLRB No. 154 (Dec. 1, 2017). Ohr explained that GC Memo 18-04 was no longer necessary, given the number of Board cases interpreting Boeing since it was issued.

  • General Counsel Memo 18-06, Responding to Motions to Intervene by Decertification Petitioners and Employees, which required Regions to no longer oppose intervention in unfair labor practice hearings by proposed Intervenors such as individuals who filed a decertification petition or circulated a document upon which the employer had unlawfully withdrawn recognition of the collective-bargaining representative. Ohr reasoned that the approach of GC Memo 8-06 as inconsistent with prior practice.

  • General Counsel Memo 20-08, Changes to Investigative Practices, which instructed Regions on how to proceed during investigations in connection with securing the testimony of former supervisors and former agents, and how audio records should be dealt with during investigations. Ohr stated that Regions should continue to not accept recordings that violate the Federal Wiretap Act and to apprise individuals of potential state law violations when they offer recorded evidence.

  • General Counsel Memo 20-13, Guidance Memorandum on Employer Assistance in Union Organizing, which instructed Regions to urge the Board in charges challenging union neutrality agreements to adopt the stricter “more than ministerial aid” standard used in union decertification cases (examining whether the employer provided more than ministerial aid in supporting union organizing efforts), rather than the “totality of the circumstances” standard.

  • Operations-Management Memo 20-06, Outreach, Speaking Engagements, and Recruiting Activities, which created certain approval requirements for field staff members to engage in certain activities. In rescinding this Memo, the Office of the General Counsel expressly noted that “[o]utreach, speaking engagements, and recruiting activities continue to be priorities[,]” and that a future memo will issue i

The following were also rescinded:

  • General Counsel Memo 19-01 (providing instructions regarding Section 8(b)(1)(A) Duty of Fair Representation Charges).

  • General Counsel Memo 19-03 (instructing Regions to defer under Dubo Manufacturing Company all Section 8(a)(1), (3), (5), and 8(b)(1)(A), and (3) cases in which a grievance was filed and not to apply Babcock & Wilcox Construc. Co.).

  • General Counsel Memo 19-04 (instructing Regions regarding unions’ duty to properly notify employees of their General Motors/Beck rights and to accept dues checkoff revocations after contract expiration).

  • General Counsel Memo 19-05 (providing clarification of GC Memo 19-01).

  • General Counsel Memo 19-06 (instructing Regions investigating agency fee objector cases to require unions to provide detailed explanations of their chargeability decisions and requiring unions to categorize lobbying expenses as nonchargeable and account for any other secondary costs used to support lobbying activities).

  • General Counsel Memo 20-09 (instructing Regions to urge the Board to overrule Alamillo Steel and its standard in a duty of fair representation case requiring the General Counsel to establish that the grievant “would have prevailed” had the union lawfully processed her grievance, and instead adopt a standard that the underlying grievance had “arguable merit”).

  • Operations-Management Memo 19-05 (instructing that where a charged party’s lack of cooperation during an unfair labor practice investigation is significant and the Regional Director concludes that a complaint could be issued based on the evidence available, the Director, at his or her option, could issue the complaint and include a footnote noting the significant lack of cooperation).

Employers can expect more changes to come during this time of transition.  Ohr’s rescission memoranda indicated that additional memoranda setting forth additional new policies will be issued in the near future.  Stay tuned for further developments.