Legal Alert

The Pendulum Swings: Newly Appointed Acting General Counsel of the NLRB Rescinds 10 Trump-Era General Counsel Memos

by Steven W. Suflas and Tara L. Humma
February 3, 2021

Summary

Within his first week on the job, the newly appointed Acting General Counsel of the National Labor Relations Board, Peter Sung Ohr, rescinded 10 General Counsel Memoranda issued by his predecessor that provided guidance for employers, employees, and unions regarding the National Labor Relations Act. Additionally, Beth Tursell, Associate to the General Counsel, issued another memorandum rescinding certain Operations-Management Memoranda on February 2, 2021.

The Upshot

  • Most of the rescinded memoranda expanded union exposure to unfair labor practice charges
  • The immediate rescissions of these memos are indicative of the Biden administration’s plan to roll back Trump administration approaches that generally were more employer-friendly.
  • Mr. Ohr also announced that “future memoranda setting forth additional new policies will issue in the near future.”

The Bottom Line

When making decisions about workplace policies and employee actions that could implicate the NLRA, employers should take into consideration the fact that prior NLRB guidance has been or will be rescinded by the new administration and that new guidance will be forthcoming. Employers should expect many changes from the new administration that will insert the NLRA into non-union workplaces.

Within his first week on the job, the newly-appointed Acting General Counsel of the National Labor Relations Board (NLRB), Peter Sung Ohr, rescinded 10 General Counsel Memoranda that had been issued under the Trump administration by his predecessor, General Counsel Peter Robb. Mr. Ohr, who made the changes on February 1, 2021, explained that the National Labor Relations Act (NLRA) makes clear that it is meant 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 representation of their own choosing for the purpose of negotiating the terms and conditions of their employment.” Mr. Ohr stated that he “determined that a number of outstanding General Counsel Memoranda are either inconsistent with the above-described policies and/or Board law, or are no longer necessary.”

In addition, on February 2, 2021, Beth Tursell, Associate to the General Counsel, issued a memorandum rescinding two Operations-Management Memoranda that were issued under the Trump administration.

A summary of the rescinded memoranda, most of which expanded union exposure to unfair labor practice charges, follows.

  • GC 18-04 –Provided guidance on employee handbook rules and policies in the aftermath of the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). Mr. Ohr stated that this memo was rescinded because it is no longer necessary given Board decisions since the Boeing case related to handbook rules.
  • GC 18-06 – Required NLRB Regions to no longer oppose intervention in unfair labor practice hearings by individuals who had filed a decertification petition or circulated a document upon which the employer had withdrawn recognition from the collective bargaining representative. Mr. Ohr stated that the approach contained in the memo was inconsistent with prior NLRB practice.
  • CG 19-01 – Explained that in duty of fair representation charges, where unions raise a “mere negligence” defense based on having lost track, misplaced, or otherwise forgotten about a grievance, unions must establish the existence of established, reasonable procedures or systems to track grievances. Mr. Ohr did not provide an explanation for his action, but it does away with the heightened standard for the “mere negligence” defense outlined by Robb.
  • CG 19-03 – Mr. Ohr stated that this memo was rescinded as outdated, based on United Parcel Services Corp., 369 NLRB No. 1 (Dec. 23, 2019). He explained that to the extent GC 19-03 made changes to case handling procedures relating to the deferral of cases under Dubo Manufacturing Corporation, 142 NLRB431 (1963), Regions should follow the Unfair Labor Practice Casehandling Manual.
  • CG 19-04 – Instructed Regions to urge the Board to adopt the D.C. Circuit precedent, which requires unions to provide the reduced amount of dues and fees for dues objectors in the initial notice to employees; to urge the Board to limit dues authorization window periods; find unions’ certified mail requirements unlawful; and mandate certain union communications with employees concerning untimely revocation requests.
  • CG 19-05 –Provided clarification to GC 19-01 and explained that GC 19-01 did not alter the analysis concerning whether a union’s decision to pursue a grievance or not violated the duty of fair representation.
  • GC 19-06 – Instructed Regions investigating agency fee objector cases to require unions to provide detailed explanations of the union’s chargeability decisions for each major category of expenses and the method used to determine the portion of expenses chargeable in mixed expenditure categories; to account for any other secondary costs used to support its lobbying activities; and finding no amount de minimis.
  • GC 20-08 – Instructed the Regions on how to proceed during investigations in securing the testimony of former supervisors and former agents and how audio records should be dealt with during investigations. Mr. Ohr explained that he was rescinding this memo because it was inconsistent with prior practice. He states that Regions should continue to not accept recordings that violate the Federal Wiretap Act and to apprise individuals who proffer recorded evidence when it may violate state law.
  • GC 20-09 – Instructed the Regions to urge the Board to adopt an “arguable merit” standard that reverses the burdens of proof and imposes full liability on a union for its mishandling of grievances.
  • GC 20-13 – Required the Regions to urge the Board to make changes involving union neutrality agreements and to adopt the “more than ministerial aid” standard used in union decertification cases.
  • OM 19-05 – Instructed Regions that they could include facts related to Charged Party cooperation in complaints. The rescission explains that going forward, Charged Party cooperation or lack thereof should not be mentioned.
  • OM 20-06 – Dealt with guidelines and protocols for outreach activities to promote awareness of the NLRA, speaking engagements, and recruitment activities for Field Office staff. The rescission memo states that these activities remain priorities and that going forward, Regional Directors will determine which staff will perform each of the functions.

Mr. Ohr’s memo and the subsequent memo issued by Associate General Counsel Tursell show that the proverbial pendulum swing has started due to the change in the federal administration and reflect the influence that organized labor will have at the new NLRB. President Biden terminated Mr. Robb before the end of his term, contrary to prior precedent. He immediately appointed Mr. Ohr to the Acting General Counsel position, who has wasted no time in reversing policies of the Trump administration. 

Employers should expect further guidance from the Acting General Counsel, as well as changes in policy throughout all of the federal employment agencies under the Biden administration. Employers should consider how the changes in guidance and policy at the federal level will affect actions taken and decisions made by the organizations. Employers will need to be extra vigilant to ensure they remain in compliance with the new guidance and policies, as changes will likely be swift and wide-ranging.

Ballard Spahr’s Labor and Employment Group is prepared to answer questions regarding changes in NLRB and other federal policies and guidance. Please contact us if we can assist you in understanding your company’s legal requirements and the measures your business must take to remain in compliance with applicable law.

Join our February 10, 2021, webinar titled “Let’s Talk Labor Law Under the Biden Administration” for an in-depth discussion about what the future of the NLRB will mean for the workplace. Register here.


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