September 25, 2021

Volume XI, Number 268


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September 23, 2021

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NLRB Acting General Counsel Rolls Back Guidance from Prior Administration

On February 1, National Labor Relations Board (“NLRB”) Acting General Counsel Peter Sung Ohr rescinded a slew of General Counsel Memos issued by his predecessor, Peter Robb. On February 2, Ohr continued his actions by rolling back two Operations Management memos that were also issued during Robb’s term.

Ohr’s actions come one week after he was appointed to the post by President Biden following the unprecedented firings of Robb and NLRB Deputy General Counsel Alice Stock. According to Ohr, the rescinded memoranda are either no longer necessary or are inconsistent with the NLRA’s policy of promoting collective bargaining, self-organization, and freedom of association.

The impact of this action is limited, as it does not change existing Board precedent; however, it is instructive as to Ohr’s prosecutorial priorities as General Counsel (assuming he is appointed beyond the acting role and is confirmed by the Senate). Another variable here is that the very authority of the Acting General Counsel is cast in doubt due to the pending challenges to President Biden’s dismissal of Robb and Stock (discussed here).

Some of the memos that were rescinded are summarized below, including any specific rationale Acting General Counsel Ohr provided for doing so.

  • General Counsel Memo 18-04 (Handbook Rules Post-Boeing), which provides guidance regarding the placement of various types of employment rules into three categories set forth in the Board’s decision in The Boeing Company. According to Ohr, this Memo is being rescinded because it is no longer necessary given the number of Board cases interpreting Boeing that have been decided since the case was issued.

  • General Counsel Memo 20-13 (Employer Assistance in Union Organizing), which requires Regions to urge the Board to adopt the “more than ministerial aid” standard in charges involving union neutrality agreements in order to harmonize this with other areas of Board law, clarify ambiguity, and better protect employee free choice.

  • General Counsel Memo 20-08 (Changes to Investigative Practices), which sets forth new guidelines for how Regions conduct unfair labor practice investigations – specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings. According to Ohr, this guidance is being rescinded because portions are inconsistent with prior practices. Ohr’s memo advises regions to “continue not to accept recordings that violate the Federal Wiretap Act and to appraise individuals who proffer recorded evidence when it may violate state law.”

  • General Counsel Memo 18-06, (Responding to Motions to Intervene by Decertification Petitioners and Employees) which instructs Regions to no longer oppose timely motions to intervene filed at or during unfair labor practice hearings by: (1) employees who have filed decertification petitions with a regional office and where the ULP proceedings may impact the validity of their petitions; and (2) employees who have circulated a document relied upon by an employer to withdraw recognition from a labor organization.

  • General Counsel Memo 19-03 (Deferral Under Dubo Manufacturing Company), which instructs Regions to defer under Dubo Manufacturing Company and to not apply Babcock & Wilcox Construction Co.

  • Operations-Management Memo 19-05 (Respondents’ Failure to Cooperate with ULP Investigations in Subsequently issued Complaints), providing that where: (1) a charged party’s lack of cooperation in a dispute is significant; and (2) the Regional Director has concluded that a complaint could issue based on the available evidence, the Director is free to issue said complaint and may include a footnote indicating the lack of cooperation in lieu of issuing an investigative subpoena. Going forward, Regional Directors may continue to use investigative subpoenas but should not note a charged party’s cooperation or lack thereof on the complaint.

  • Operations-Management Memo 20-06 (Outreach, Speaking Engagements, and Recruiting Activities), which created certain approval requirements for field staff members to engage in certain activities. Going forward, Acting General Counsel Ohr has indicated that Regional directors or their designees will make determinations as to which staff members will perform each of these functions.

Ohr has also rescinded General Counsel Memos 19-01 (clarifying that in cases where a union asserts a mere negligence defense in a duty of fair representation charge based on its having lost, misplaced or otherwise forgotten about a grievance, the union must show the existence of established, reasonable procedures in place to track grievances, without which, the defense should ordinarily fail); 19-04 (explaining the Board’s positions concerning a union’s duty to: (1) properly notify represented employees of their General Motors right to be non-union members and Beck right to be objectors; and (2) clearly and unambiguously notify employees when they may revoke their dues authorization checkoffs); 19-05 (clarifying that Memo 19-01 did not alter the analysis concerning a union’s decision whether or not to pursue a grievance); 19-06 (providing guidance regarding case handling procedures in Beck chargeability cases and the proper allocation of secondary expenses flowing from a union’s lobbying activities); and 20-09 (directing Regions to urge the Board to reverse Alamo Steel and adopt an “arguable merit” standard).

The Ohr policy memos indicate that new policies will be issued by the Board in the near future, including a memo addressing the need for more vigorous outreach, particularly to non-traditional labor communities. As always, we will continue to monitor developments related to the Board and provide updates as they develop.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 34

About this Author

Mark Theodore, Employment Attorney, Proskauer Rose

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

Michael J Lebowich, Labor, Employment, Attorney, Proskauer, Law Firm

Michael Lebowich is a Partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He...

Joshua Fox Labor & Employment Attorney Proskauer Rose

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

Alex Downie  New York  Labor & Employment Law
Law Clerk

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned his J.D. from the University of Virginia School of Law, where he served as the executive editor of the Virginia Law & Business Review. He also volunteered for the school’s employment law clinic, where he assisted with a variety of employment-related matters ranging from employment discrimination to wage and hour disputes...