By:  David Keating

Within two days of taking office, President Biden fired National Labor Relations Board (“Board”) General Counsel Peter Robb, Robb’s Deputy General Counsel Alice Stock, and named Member Lauren McFerran, the only Democratic member of the Board, as its Chairman.  These unprecedented firings have resulted in great scrutiny of the new administration from employers.

Following the firings, President Biden named Peter Sung Ohr as Acting General Counsel of the Board.  Ohr is a career employee of the Board. He served as a Field Attorney, Deputy Assistant General Counsel in the Board’s Division of Operations-Management, and as a Regional Director of the Board’s Chicago Regional Office.

Since being named Acting General Counsel, on February 1, 2021, Ohr rescinded a number of General Counsel Memos issued by Robb during the Trump administration.  According to Ohr, he determined that a number of outstanding Robb memoranda are either inconsistent with encouraging the practice and procedure of collective bargaining, 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.

A summary of notable Robb memoranda that were rescinded by Ohr:

• GC 18-04, Guidance on Handbook Rules Post-Boeing (June 6, 2018) (instructing 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, 365 NLRB No. 154 (Dec. 14, 2017)). Ohr indicated that this Memorandum is being rescinded as it is no longer necessary, given the number of Board cases interpreting Boeing that have since issued.

• GC 18-06, Responding to Motions to Intervene by Decertification Petitioners and Employees (Aug. 1, 2018) (requiring Regions to no longer oppose intervention in ULP hearings by proposed Intervenors such as individuals who have filed a decertification petition or circulated a document upon which the employer has unlawfully withdrawn recognition of the collective-bargaining representative). Ohr noted that this is inconsistent with prior practice.

• GC 19-03, Deferral under Dubo Manufacturing Company (Dec. 28, 2018) (instructing Regions to defer under Dubo [142 NLRB 431 (1963)], or consider deferral thereunder, of all Section 8(a)(1), (3), (5) and 8(b)(1)(A), and (3) cases in which a grievance was filed and not to apply Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014) (“Babcock”) to cases that could be deferred under Dubo). Since Babcock was overruled by United Parcel Services. Corp., 369 NLRB No. 1 (Dec. 23, 2019), GC 19-03 is outdated. To the extent the memorandum made changes to case handling procedures relating to the deferral of cases under Dubo, Ohr directed Regions to follow Section 10118.1(c) of the Unfair Labor Practice Casehandling Manual and the memoranda cited therein.

• GC 20-08, Changes to Investigative Practices (June 17, 2020) (instructing Regions on how to proceed during investigations in connection with securing the testimony of former supervisors and former agents, and how audio records should be dealt with during investigations). Ohr noted that this Memorandum is being rescinded because portions are inconsistent with prior practices. 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 20-13, Guidance Memorandum on Employer Assistance in Union Organizing (Sept. 4, 2020) (requiring Regions to urge the Board in charges involving union neutrality agreements to adopt the “more than ministerial aid” standard used in union decertification cases).

Ohr’s full memorandum can be viewed here.

Although Ohr’s recent action does not change Board precedent, it provides insight as to his priorities in the event he is named General Counsel.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent actions at the National Labor Relations Board or any other labor or employment issue involving your business, please contact us at any time.