The day he was inaugurated President Biden fired Peter Robb, then General Counsel of the NLRB. Robb, in his time as General Counsel, was instrumental in presiding over the agency regarding policy, and via his memos, reversed much of the liberal pro-union policies of the Obama NLRB.
Two weeks ago, Biden nominated Peter Ohr as NLRB General Counsel. This week Ohr, a lifelong NLRB regional staff employee, set out to reverse everything that Peter Robb accomplished during his pro-management time as General Counsel. He also indicated the direction he would like the Board to go in implementing an incredibly pro-labor agenda. Some of the highlights include revisiting the Employee Free Choice Act, return to a very pro-union position on the “micro unit” issue which facilitates organizing, the independent contractor issue, restrictions and requirements that relate to the publishing and enforcement of employee handbooks, and a very restrictive interpretation and enforcement of the persuader provisions under the Labor Management Reporting and Disclosure Act of 1953. If accomplished, these policy changes will put employers at a distinct disadvantage in dealing with issues related to unfair labor practice charges involving union organizing as well as contract administration.
This, coupled with seizing on every opportunity to reverse pro-management Board decisions made over the last four years and returning to a more pro-labor stance, is likely to make employers who are involved in any labor relations matter involving the NLRB miserable. Some of those issues, for example, relate to the permissible use of employers’ email by employees for the purpose of union organizing, union access on employer property for the purpose of organizing, and more consideration of criteria for determining who is a joint employer.
Additionally, the agenda includes a suggestion that there should be monetary penalties as part of the remedial action related to unfair labor practice charges. (This would only apply, of course, to employers who violate the Act.) Given the aggressive actions of this administration, it does not take much imagination to believe that once the “fines” are in place someone will propose that employers and specifically managers who violate the action be thrown in jail, ala OSHA.
Notwithstanding, any of this is the extremely likely reality that employers will rarely prevail in a case before the NLRB absent overwhelming evidence in support of its defense. Sadly, even though Ohr or a subsequent nominee must be confirmed by the Senate, the agenda will go forward regardless who is confirmed as the Chairman. The last defense will be the federal courts for those employers who have the will and the money to pursue improper actions by the NLRB.
A bumpy ride does not begin to adequately describe the near-term future for employers who will have the unfortunate experience of a confrontation with this NLRB.
William R. Adams, Ph.D.
Adams, Nash, Haskell & Sheridan