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Biden’s New Mission for the NLRB to Revive the Labor Movement.

Biden’s New Mission for the NLRB to Revive the Labor Movement

May 4, 2021

When our country elected Joe Biden as President, he made it clear that changes at the National Labor Relations Board (NLRB) would be swift and that he would deliberately advance his pro-worker agenda.  Soon after promising to be the “the strongest labor president you have ever had”, Biden fired General Counsel Peter Robb along with Robb’s deputy.  He announced the nomination of Jennifer Abruzzo to serve as the new General Counsel (GC).  With ensuing complications and no set date for her confirmation, he appointed Regional Director Peter Sung Ohr to the position of acting General Counsel.

The acting GC warned that he would not be a “potted plant” during his time in the temporary position and, as promised, during Ohr’s first few months he has rescinded 12 memoranda Robb issued during his tenure.  In February, Ohr issued his first memoranda rescinding the first ten put out by Robb.  He explained that the policy of the United States is “to encourage the practice and the procedure of collective bargaining and to protect the exercise by workers of their full freedom of association, self-organization, and designation of representatives of their own choosing for the purposes of negotiating the terms and conditions of their employment.”

Ohr’s memorandum stated that the previous Robb guidance memoranda were either inconsistent with the original mission of the NLRB or were no longer necessary.  Closing out the memorandum was a promise that new policies would soon follow.

On March 31, 2021, the acting GC issued his latest memorandum stating that the NLRB intends to “vigorously enforce” the employee protections in Section 7 of the National Labor Relations Act (NLRA).  Mr. Ohr criticized the Trump-era Board’s approach to the “mutual aid and protection” doctrine, stating that he believed that the Board’s previous application was too narrow and restricted employee protections.

In the memorandum, Mr. Ohr stated his intention to review and expand the types of conduct considered “inherently concerted” and therefore protected under Section 7.  He stressed that the doctrine of inherently concerted activity, being a flexible concept and having no “magic words”, would allow the NLRB “to better serve the policies of the United States.”  This memorandum should be of interest to all employers, union and non-union, because of the expanded scope of what the acting GC considers within the range of what constitutes protected, concerted activity.

The memorandum states that employees’ right to engage in “concerted” activities for the purpose of mutual aid and protection is legally protected, not only when the activity involves matters of the workplace but also when the activity involves the employees’ interest as employees.  Therefore, activities are protected when they involve efforts to “improve their lot as employees through channels outside the immediate employee-employer relationship as well as in support of employees of employers other than their own”.  Based on that view of protected activity, the GC emphasizes that as long as there is a connection to the employees’ interests as employees, activities that involve political and social justice advocacy may also be protected.

Although Ohr’s memorandum does not have binding legal effect, the memorandum provides a clear indication of the dramatic course correction the NLRB will almost certainly take once the Board shifts to a Democratic majority later this year.  Additionally, we can expect that the NLRB’s regional offices will pursue more cases against employers now because by the time those cases reach the Board level for decision making, the Board will have a Democratic majority.

Even prior to Abruzzo’s nomination, Congressional Democrats introduced the Protecting the Right to Organize (PRO) Act.  Although some believe it unlikely to pass in the Senate, the PRO Act would impact both union and non-union employers by amending right-to-work laws, giving workers more power during disputes at work, adding penalties for companies that retaliate against workers who organize, and potentially granting collective bargaining rights to many workers who do not currently have them.

Regardless of whether the PRO Act becomes law, the appointment of Abruzzo and the actions of Ohr to date are likely to trigger a dramatic increase in union activity across the country, at least over the next four years.

On Monday, April 26th, President Biden announced that Vice President Kamala Harris will chair a new White House Task Force on Worker Organizing and Empowerment.  Biden signed an Executive Order creating the task force, which will “be dedicated to mobilizing the federal government’s policies, programs, and practices to empower workers to organize and successfully bargain with their employers.”  The group, under the direction of VP Harris, will be expected to provide a list of recommendations within 180 days on how to promote the organization of labor and identify what new policies and regulatory changes are needed to accomplish that goal.

Employers need to be vigilant to remain in compliance with the new guidance and policies, as changes will likely be swift and cover a wide range of areas.  Employers need to review policies and procedures that may come under renewed NLRB scrutiny, such as social media policies, confidentiality policies, work rules, and investigation procedures.  Employers concerned about being organized should engage in strategic planning now to be in the best possible position to defend an organizing campaign.  Far too many employers do not do so until it is too late.

With the NLRB’s latest guidance from the acting GC and the newly minted pro-union Task Force looking for ways to strengthen the power of the employee, now is the time to start building an effective defense and strategy.  Doing so includes more than simply training management and updating policies.

For nearly sixty years, The Bennett Law Firm has been a leader on how to stay ahead of changes in policy.  For questions or for more information on this issue, please contact Peter Bennett (pbennett@thebennettlawfirm.com ) or Rick Finberg (rfinberg@thebennettlawfirm.com).

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