Acting NLRB General Counsel Starts Rollback of Employer-Friendly Policies - American Society of Employers - Michael Burns

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Acting NLRB General Counsel Starts Rollback of Employer-Friendly Policies

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President Biden is unabashedly pro labor – no surprise there. One of the very first actions he took when he stepped into the Oval Office last month was to fire the NLRB General Counsel (GC) and the Assistant General Counsel. Somewhat of a surprise there, because they had some time left to their terms. Biden appointed Peter Sung Ohr as NLRB General Counsel (Acting) last week and almost immediately Mr. Ohr rescinded no less than 10 directives issued by his predecessor Peter Robb (Trump’s now former NLRB GC in case anyone needs a reminder).

What Were These Previous Directives That Were Rescinded?

The National Labor Relations Board (NLRB) issues what they call policy memoranda to NLRB staff (investigators and lawyers) to direct them on how to process certain cases, to set enforcement priorities and prepare those cases the GC believes will shape NLRB critical labor law policy and practice going forward during the current administration and hopefully beyond.

If one wants to see the stark political and policy differences that exist between GOP and Democratic parties, the NLRB is a good place to observe.

For employers this means paying attention to what changes come out from the NLRB whether the company is union or non-union. The National Labor Relations Act does apply to both.

The new GC announced the rescinded memorandums were done so because “they were ‘inconsistent’ with the Board’s goal of encouraging collective bargaining and protecting worker’s rights under the act.” Half of that is legislatively correct. The NLRA was intended to promote labor peace, not encourage union organizing per se. It is a legislative “mediation” tool. It does protect the right to organize and in so doing is vigilant as to employer policy and practice that the NLRB deems contrary to a worker’s right to engage in protected concerted activity. The other reason the NLRB GC rescinded a number of memos was they were deemed “no longer necessary.”

During the Obama Administration its pro labor NLRB went after any employer (union or non-union) policy or rule it deemed contrary to employees’ rights to organize. When the Trump Administration came in, it immediately challenged and changed how the NLRB looked at many employer policies and rules using a new standard of reference known as the Boeing rule.  The Trump GC issued a comprehensive Memo GC 18-04 in June of 2018. This Memo moved the Obama NLRB’s pro-labor guidance toward a more neutral (yes arguably more pro-business) stance in regard to employer rules/policies and whether a rule would be considered lawful or was an unfair labor practice under the NRLA.

Memo GC 18-04 was the first Memo Biden’s new GC Ohr rescinded. This is definitely a harbinger indicating the Biden NLRB will challenge the Boeing ruling that set into place legal and illegal employer policy and rule practices.

The second Memoranda rescinded a directive to bring cases to the NLRB involving “neutrality agreements.” Neutrality agreements are set in place by an employer stating they will stay out of the way during an organizing drive (be neutral) rather than trying to educate its employees on what being unionized may mean to them. The NLRA allows an employer to communicate that it believes it should not be organized and educate its employees about what unionization means to them. To the new administration this just won’t do. Therefore, the new NLRB will encourage cases be brought up that will find employers that exercise the right to communicate with their employees about union organizing and being organized are in fact in breach of the NLRA and any neutrality agreement they sign.

Ohr also pulled a lawsuit involving a hotel that if decided would have allowed an employer to provide more than just “ministerial aid” to a union during an organizing drive. NLRB staff would have had to pursue NLRB charges against an employer providing such aid under a neutrality agreement.

In addition to those rescissions, Acting GC Ohr also pulled several other directives that weighed too heavily against organized labor:

  • Lowering the burden of proof necessary to defend against a charge that they unreasonably interfered with their members’ right to hold their union accountable in fair representation cases.
  • Reducing the requirement of the NLRB Regions to bring cases to the NLRB that would ease the union’s burden of proof in cases alleging a violation of the union’s duty of fair representation.
  • Reducing the NLRB Region’s requirement to bring cases requiring unions to provide detailed explanations of membership dues and other obligations in fee objector cases.

Withdrawal of these directives results in removing a large chunk of union accountability to its own members.

This action is just the start. The NRLB pendulum is swinging back toward a pro-union bent. Non-union employers should prepare to review and update their employee handbooks as new challenges to old policies are once again labelled anti-union and unfair labor practice.

Further, employers that wish to remain union-free need to shore up their employee relations position. Big picture, this means:

  • Training supervisors to avoid actions that unnecessarily create problems (inequitable treatment, poor communications) with workers,
  • Exchanging information and eliciting feedback from workers, and
  • Paying fairly.

Keeping a union out is as simple as that. What worker wants to pay for an agency service (a union) that often equates to two to three hours of their pay per month when they already have what a union is promising them?

As employers face a more union-friendly NLRB, following the above guidelines will help to keep them union-free.

 

Additional ASE Resources
ASE members have access to many resources important to employers for avoiding unionization. They include:

Compensation Surveys & Consulting – ASE members receive free benchmarked compensation data which provides them the data necessary to make competitive pay decisions. To participate in the 2021 compensation surveys open now, please contact the ASE survey team for your personalized link.  In addition, we offer compensation consulting which allows members to review pay for both competitiveness and equity. For more information on compensation consulting, please contact Kevin Marrs.

Employee Engagement Surveys – ASE offers employee engagement and opinion surveys that allow you to keep a pulse on employee sentiment. For more information, please contact George Brown

Supervisory and Leadership Training – ASE offers numerous resources for supervisory and leadership training.  Our training program offers over 65 unique courses. View the course catalog here. We can also customize a program for your organization. To discuss a custom program or course, contact Tony Kaylin.


Sources: Jackson Lewis Labor & Collective Bargaining newsletter Acting NLRB General Counsel Rescinds Policy Guidance, Signals More Changes to Come 2/3/2021; NLRB Acting Prosecutor Nixes Trump-Era Guidance Law 360 2/1/2021

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