February 8, 2021
The recently appointed National Labor Relations Board (“NLRB”) acting General Counsel wasted no time in withdrawing 10 Guidance Memos issued by his Trump-appointed predecessor. In the move, interim General Counsel, Peter Ohr, who is the chief prosecutor under the NLRB, stated his predecessor’s opinions were unnecessary or in conflict with the NLRB’s desire to encourage collective bargaining. This is a strong rebuke of the Trump-era legal guidance that had been steering the NLRB until President Biden’s inauguration and last week’s sudden termination of the former NLRB General Counsel, Peter Robb.
Just as quickly as Ohr was put into office, he has begun to unwind guidance and policies implemented by the Republican-led NLRB. Some readers will recall that President Biden called for the former NLRB General Counsel’s resignation on Inauguration Day. When Robb declined, President Biden fired him that same day. This marked the first time in history that the President terminated the NLRB’s General Counsel. The next day, Deputy General Counsel Alice Stock was given the same ultimatum. Later that same day, Stock met the same fate as Robb when she refused to resign. These unprecedented actions are clearly a sign of things to come.
Why should employers care who is the General Counsel for the NLRB?
As chief prosecutor, Ohr will decide what cases NLRB attorneys bring and the theories they present to the NLRB’s five-member board. Since moving into the role as interim General Counsel, Ohr, who is a career staffer at the NLRB, has struck down several memos Robb had issued over the past three years. In addition to withdrawing the 10 guidance memos in his first week in office, Ohr has withdrawn at least one case Robb was hoping to use to consecrate an employer-friendly view of federal labor law.
Many business advocates and legal scholars have questioned Robb’s firing, calling it a partisan move by the Biden administration, noting the NLRB’s General Counsel has always been permitted to stay through their current term even after the transition to a new presidential administration with opposing political affiliation. Even Donald Trump honored this seventy-year-old precedent when he allowed the Obama Administration’s NLRB General Counsel, Richard Griffin, to finish out the nine-months remaining to his term back in 2017.
What is at stake?
The Robb firing is a clear indication of the priorities of the Biden administration. Biden, as with Democrats in general, rely strongly on union support to get elected; accordingly, the Biden administration is looking to reward this segment of the Democratic base. The most efficient way to do this is through the NLRB. Currently, the NLRB’s five-member board has three Republicans, but this will change later this year when Republican, Marvin Kaplan’s five-year term will end and inevitably his replacement will be a Democrat. Once the NLRB is comprised of three Democrats with a Democrat General Counsel, the Biden Administration will be able to make even more advances for their pro-union agenda.
We have written previously about the coming pro-employee changes that can be anticipated with the Biden administration (click here to read a prior Brody and Associates article, Biden and His Democratic Congress). The day one termination of Robb and appointment of Ohr is a clear sign that we were correct, and that change is happening even faster than anyone could have imagined. Now is the time to prepare yourselves for the coming pro-union movement that has just resurfaced.
Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or at 203.454.0560.
