Heads (and Policies) Roll at the NLRB

By Dennis E. Westlind - Bullard Law

February 3, 2021

In case you missed it, one of President Biden’s first official acts on Inauguration Day was to remove National Labor Relations Board (“NLRB” or "Board") General Counsel Peter Robb. The General Counsel role has significant control over the direction of the NLRB and the application of the National Labor Relations Act (“NLRA”) in the workplace, which could have a significant impact on both union and non-union employees. Robb’s interim replacement, Acting General Counsel Peter Sung Ohr, has quickly moved to withdraw several of Robb’s advice memoranda--advice Ohr described as being inconsistent with the Board’s mission “to encourage the practice and procedure of collective bargaining” and encourage the formation of unions. Such advice memos help employers know what the Board’s likely actions will be in certain cases and provide direction to NLRB field offices on how to decide common issues.

The advice memos that Ohr has withdrawn include:

•    A memo suggesting that employers may violate the National Labor Relations Act by entering into neutrality agreements with unions;
•    A memo advocating for new rules that unions inform members of their reduced obligation to pay union dues following contract expiration;
•    A memo that increased the amount of financial information that unions were required to disclose;
•    A memo directing NLRB investigators to turn over audio recordings received during the course of investigations to the recorded parties;
•    A memo directing NLRB investigators not to speak directly to an employer’s former managers and supervisors during the investigation; and
•    Three memos that made it easier for employees to bring charges against a union for breach of the union’s duty of fair representation.

In addition, and consistent with the withdrawal of the advice memo on the topic, Ohr directed the withdrawal of a complaint brought by Robb’s office in 2020, challenging a neutrality agreement between an employer and a union.

Enacted in 1935, the purpose of the National Labor Relations Act, as stated by Congress, is to “diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce.”  The Act also established the NLRB as a neutral agency to enforce the Act, including the processes by which employees can join a union – or not, – depending on their choice. Ohr’s statements signal that the Biden administration is staking out a very pro-Union position and that the Board’s upcoming decisions will increasingly favor unions. This will impact both employers that already have a union and non-union employers whose employees may attempt to organize.

The withdrawal of these memos does not require that employers immediately change any of their practices, but now would be a very good time to review your current policies, handbooks and hiring practices to ensure that they are consistent with current labor law. We anticipate that unions will take advantage of a friendlier NLRB to increase their organizing efforts, so employers should train supervisors about union organizing rules and what they can and cannot say to employees about unions. Bullard Law will continue to monitor the changes at the NLRB and provide updates on how employers can best respond.