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Introduction
In our last Review, we reported that the National Labor Relations Board had a very busy year. Despite the challenges of the COVID-19 pandemic, 2020 was also a fairly busy year for the Board. In its final year, the Trump Board produced a number of key decisions for employers. Whether those decision stand the test of time remains to be seen, because the Biden Board will soon begin its work. In the meantime, we will review the highlights from 2020 and preview some of the possible changes that may be down the road.
Like so many of us, the Board was forced to convert nearly of its employees to remote work in March of 2020, and ultimately transitioned most of its activities to a virtual environment. This included videoconferencing for unfair labor practice (“ULP”) and representational proceedings. The Board also continued to conduct representational elections, following a brief two-week shut down.
Wednesday, February 17, 2021
The Biden administration has officially begun to undo Trump-era labor relations policy. Peter Ohr, acting general counsel of the National Labor Relations Board (NLRB), withdrew 10 guidance memos that were issued by President Trump’s General Counsel Peter Robb. The following guidance memos were rescinded on Feb. 1, 2021.
GC 18-04,
Guidance on Handbook Rules Post-Boeing (June 6, 2018)
Instructed regions on the placement of various types of employer rules into the three categories set out in the then-recent Board decision in
The Boeing Company. This guidance memo was rescinded because it was no longer necessary, given the number of Board cases interpreting
Friday, February 12, 2021
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.
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As anticipated Acting General Counsel Peter Sung Ohr took no time to rescind a significant number of General Counsel Memoranda issued by former General Counsel Peter Robb during the Trump Administration.
In a February 1, 2021, Memorandum (GC 21-02), Acting General Counsel Peter Sung Ohr reiterated the purpose of the National Labor Relations Act stating, “[s]ection 1 of the 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.”