NLRB General Counsel Rescinds Trump-era Memos, Signaling Shift Toward new Policy Objectives

Signaling the beginning of what likely will be a major policy shift, Peter Ohr, acting General Counsel of the National Labor Relations Board (NLRB), on February 1, 2021 revoked 10 administrative guidance memoranda issued by his predecessor, Peter Robb. Ohr revoked two additional advice memoranda the following day. Both union and nonunion employers should keep a close eye on further action by Ohr.

By way of brief background, President Biden relieved former General Counsel Robb of his post on January 20, 2021. Biden elevated Ohr, who has been with the NLRB since 1997, from his position as the Regional Director of the Chicago Regional Office. For more information on Robb’s firing, see our January 22, 2021 alert.

As discussed in our November 10, 2020 alert, the Biden administration’s labor policy has two primary goals: (1) promote collective bargaining and (2) encourage union membership. The guidance that General Counsel Ohr revoked, by and large, directly relates to these two goals and likely is a preview of what is to come — particularly when Democrats regain the majority of NLRB seats, which could happen as early as late 2021.

To that point, Ohr rescinded guidance from September 2020 that encouraged the NLRB to adopt a stricter standard for evaluating preelection neutrality agreements. A lawful neutrality agreement exists where an employer agrees to remain neutral and not openly oppose a union’s attempt to organize the employer’s workforce. Robb’s September 2020 guidance encouraged the NLRB to adopt a standard that evaluated whether the employer provided “more than ministerial support” to the union’s organization efforts and recommended a three-part test that expressly prohibited, among other things, negotiating terms and conditions of employment prior to the union officially attaining majority status. Ohr’s rescission of this guidance signals a policy shift by the General Counsel to encourage or, at a minimum to not subject to additional scrutiny, neutrality agreements, thereby creating an easier path to workplace unionization.

In addition to the neutrality agreement guidance, Ohr rescinded several advice memoranda addressing duty of fair representation charges. These advice memoranda dealt with the following:

• GC Memo 19-01 required unions raising certain defenses to duty of fair representation charges to demonstrate that it implemented a grievance tracking procedure.
• GC Memo 20-09 encouraged the NLRB to adopt a stricter standard that required unions, rather than the charging party, to demonstrate that a grievance lacked merit to avoid full liability to the charging party for violating the duty of fair representation.

Tellingly, Ohr did not provide any explanation for rescinding these particular memoranda. Rescinding these memoranda lowers unions’ potential liability in unfair labor practice charges brought by individuals and facilitates raising certain defenses. In theory, this could dissuade disgruntled union members from formally raising a complaint against the union thereby further encouraging union membership.

Ohr will undoubtedly release advice memoranda of his own soon which will likely concern many of the issues addressed in the rescinded Robb memoranda. While the NLRB may not overturn Trump-era precedent just yet, the Biden administration will begin to effectuate its policy goal of increasing union membership and collective bargaining by using the policy-setting power of the General Counsel’s office.