By Timothy F. Murphy
It’s a bit premature to refer to the National Labor Relations Board (NLRB) as the Biden Board because only four seats on the five-member board are filled and three of those members are Republican holdovers from the Trump Administration. The lack of a Democratic-controlled board has not prevented the Biden Administration from taking steps to reverse Trump-era labor policies, however.
The First Step Was a “Doozy”
On January 20, President Biden fired the NLRB’s General Counsel, Peter Robb, after Robb refused to quit. Robb, a former management-side labor lawyer, was confirmed by the Senate and was serving a term set to expire in November 2021. Robb had become a lightning rod for criticism by union-side advocates who viewed his actions to be aggressively anti-union.
While it is not clear if President Biden violated the law in firing Robb, the move certainly violated norms as both Presidents Obama and Trump allowed the NLRB general counsels appointed by their predecessors to serve out their respective terms before appointing replacements more aligned with their own labor policy views. Robb’s termination has already drawn legal challenges that may undermine the work of Robb’s successors.
Peter Sung Ohr is serving as Acting General Counsel. He will not be taking over the General Counsel position on a permanent basis because President Biden has nominated Jennifer Abruzzo, who previously served as General Counsel during the Obama Administration, to replace Robb. However, she must be confirmed by the Senate, and business groups are expected to oppose her confirmation for two reasons. First, out of worries (well-founded) that she will roll back her predecessor’s policies; and second, in response to the contention that she would be serving illegally because President Biden fired Robb illegally.
A New Chair and New Direction
President Biden promptly named Lauren McFerran, the board’s sole Democratic member, as NLRB chair. She has signaled that she will move to reverse Trump-era policies after Democrats comprise a board majority.
President Biden can solidify control of the NLRB for Democrats later this year by nominating a Democrat for the open seat and then nominating another when the term of Republican member William Emanuel expires in August.
Chair McFerran has served on the Board since the Obama Administration. During the Trump-era, McFerran frequently dissented from board decisions and other initiatives. She will likely relish the opportunity to make labor policy rather than merely opposing it.
Next Steps: Out with the Old…
Last month, Acting General Counsel Ohr jettisoned 10 separate directives, referred to as General Counsel memos, of ex-GC Robb on the grounds that they were “inconsistent with the National Labor Relations Act’s stated goal of encouraging collective bargaining and protecting workers’ rights, or because they’re obsolete or contrary to board law.” (Robb took similar action when he came on in 2017.)
The rescinded GC memos included:
- a pair of memos that lowered the bar for prosecuting unions, directing NLRB staff to go after unions for “negligent” behavior that the agency previously viewed as harmless error;
- two memos that increased the level of detail unions had to include in financial notices and advocated for imposing new rules on their collection of member dues and non-member fees; and
- a memo that put new restrictions on agency investigators and lawyers receiving recorded or documentary evidence.
Bottom Line
More changes at the NLRB are coming. These changes will be fascinating to labor law nerds but for employers, they will mean uncertainty and unpredictability, neither of which are conducive to stable employee relations. But employers have been on this see-saw before. Hopefully, they can count on that experience to navigate the ever-changing currents of our national labor policy.