Discharged agency personnel, revocation of prior agency guidance, and legal challenges show an immediate shift at the National Labor Relations Board (NLRB), focusing on employee and union rights.
Ignoring decades of precedent allowing individuals to finish out their terms, when President Joe Biden assumed office, he immediately requested the resignation of NLRB General Counsel Peter B. Robb, whose term was set to expire in November. When Robb refused to resign, President Biden discharged him. A day later, President Biden asked for the resignation of, and then discharged, Robb's successor, Deputy General Counsel Alice Stock, who also refused to resign. Prior to their positions with the NLRB, both Robb and Stock were attorneys representing management in labor relations matters. On January 25, President Biden appointed Peter Sung Ohr as Acting General Counsel. Ohr is a career NLRB employee who had recently been serving as the NLRB Regional Director of Region 13 in Chicago.
In February, Ohr quickly rescinded ten of Robb's General Counsel Memos and two Operations Management Memos. General Counsel Memos serve to guide the agency's enforcement position and Operations Management Memos provide direction on case-handling matters to the NLRB's field offices. Ohr's stated rationale for the rescission of these memos is that they were inconsistent with the purposes of the National Labor Relations Act (NLRA), which was to foster collective bargaining and protect workers' rights. In some but not all cases, the memos were no longer necessary because subsequent NLRB decisions provided guidance on the subjects or overturned cases cited in the memos.
The rescinded General Counsel Memos are:
The majority of the rescinded General Counsel Memos relate to policing the NLRB and union activities.
Ohr also discarded Operations Management memos that restrained Regional Directors from issuing investigative subpoenas to non-compliant charged parties and prevented NLRB non-supervisory personnel from speaking at public conferences and events without prior permission from the General Counsel's office. The rescission of these memos overall will provide NLRB Regional Directors with more autonomy, will permit regional staff to engage in more detailed investigations brought before them for review, and is likely to decrease the transparency unions provide to the bargaining unit members they represent.
In addition to the above, the NLRB has permitted Ohr to withdraw Robb's brief in a pending case critical of the NLRB's current "contract bar" doctrine. This doctrine currently limits when employees can try to remove an existing union from their workplace.
House Oversight Committee Republican Leader James Comer (R-KY) and House Education and Labor Committee Republican Leader Virginia Foxx (R-NC) have asked President Biden's administration to turn over documents related to the unprecedented discharges of Robb and Stock. This request seeks to ensure that the NLRB remains an independent agency free from the political whims of the sitting Presidential administration and that the actions in discharging two high-level NLRB officials do not undermine the agency's impartiality in enforcing federal labor law.
Further, given the delay in the NLRB's hearing of a case alleging that two unions tried to force United Natural Foods Inc. to discriminate based on the union status of its employees, the company is challenging Ohr's appointment, alleging that President Biden's action was a purely political move that would do irreparable damage to the functioning of the NLRB. Philip Miscimarra, a former Republican NLRB Chairman who has a reputation for his lengthy dissents favoring management, represents United Natural Foods Inc. in this case.
There are a few additional cases challenging Robb's removal as illegal and subsequent actions taken by Ohr as invalid.
On February 17, President Biden nominated Jennifer Abruzzo to serve as the next NLRB General Counsel. Abruzzo is currently working as Special Counsel of Strategic Initiatives for the Communications Workers of America. She previously worked with the NLRB for decades, including as both Deputy General Counsel under President Barack Obama and Acting General Counsel for two weeks in 2017 before the Senate confirmed Robb. Abruzzo's appointment must be confirmed by a majority of the Senate.
Additional changes to the NLRB's processes, procedures, guidance and case law, resulting in law and administrative guidance that are pro-employee and pro-union, are expected. These changes will likely make it easier for unrepresented employees to file claims that their employers' workplace policies violate the NLRA and for workers to organize. Employers should take the opportunity to use the time before August 2021—when the composition of the NLRB will change again—to review and ensure that their workplace policies do not violate employees' rights to engage in protected concerted activity.
Day Pitney Alert
On August 11, Partner Francine Esposito presents during a webinar, "Challenging Health and Safety Issues in a Unionized Environment," hosted by the Employment Law Alliance.
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Healthcare Partner Mindy Tompkins was featured in a Law360 Pulse Q&A regarding her practice and decision to join Day Pitney.
Francine Esposito authored the article, "What to Know About Workers, Unions, and COVID-19 Safety Issues," published in Daily Law Report, a Bloomberg Law Insight.
Employment and Labor partner Glenn W. Dowd is quoted in the Hartford Business Journal article, "New Seniority Rehire Law Creates Hurdles for Companies Looking to Rebound from Pandemic."
The arrival of Mindy S. Tompkins was featured in the Connecticut Law Tribune's Connecticut Movers column.
The news of Mindy S. Tompkins joining Day Pitney as a partner was featured in Thomson Reuters ' The Daily Docket Industry Moves.