Once elected, President Joe Biden made it clear he would make swift and sweeping changes at the National Labor Relations Board (NLRB) in order to advance his pro-worker agenda. Soon after promising to be “the strongest labor president you have ever had,” Biden fired General Counsel Peter Robb along with Robb’s deputy. He has since announced the nomination of Jennifer Abruzzo to serve as the new General Counsel (GC), but appointed Regional Director Peter Sung Ohr to the position of acting GC until Abruzzo’s confirmation hearing.
The acting GC warned that he would not be a “potted plant” during his time in the temporary position and, as promised, Ohr has already rescinded 12 memoranda issued by Robb.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 guidance contained in Robb’s previous 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). 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, Ohr stated his intention to review and expand the types of conduct considered “inherently concerted” and therefore protected under Section 7. 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, it 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. And 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.
In the House of Representatives, the Democratic majority introduced the Protecting the Right to Organize (PRO) Act, which 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. While it is unclear if the bill will move through the Senate, many believe the PRO Act will prompt a dramatic increase in union activity across the country—at least over the next four years.
On April 26, 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 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 will 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, like social media policies, confidentiality policies, work rules and investigation procedures.
If there is one thing ringing clearly in Washington these days, it is the Biden administration’s efforts to strengthen the power of the employee. For employers, 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 60 years, The Bennett Law Firm has been a leader on how to stay ahead of changes in labor and employment policy. For questions or for more information on this issue, please contact Peter Bennett, firstname.lastname@example.org.