President Joe Biden made headlines on the day of his inauguration as he wasted no time asking for the resignation of NLRB General Counsel Peter Robb, a Trump appointee.
Biden replaced him with Peter Sung Ohr, who moved quickly to rescind 10 memos by Robb that were mostly unfavorable to unions.
JD Supra lists below the ten memos.
- “GC 18-04 –Provided guidance on employee handbook rules and policies in the aftermath of the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). Mr. Ohr stated that this memo was rescinded because it is no longer necessary given Board decisions since the Boeing case related to handbook rules.
- GC 18-06 – Required NLRB Regions to no longer oppose intervention in unfair labor practice hearings by individuals who had filed a decertification petition or circulated a document upon which the employer had withdrawn recognition from the collective bargaining representative. Mr. Ohr stated that the approach contained in the memo was inconsistent with prior NLRB practice.
- CG 19-01 – Explained that in duty of fair representation charges, where unions raise a “mere negligence” defense based on having lost track, misplaced, or otherwise forgotten about a grievance, unions must establish the existence of established, reasonable procedures or systems to track grievances. Mr. Ohr did not provide an explanation for his action, but it does away with the heightened standard for the “mere negligence” defense outlined by Robb.
- CG 19-03 – Mr. Ohr stated that this memo was rescinded as outdated, based on United Parcel Services Corp., 369 NLRB No. 1 (Dec. 23, 2019). He explained that to the extent GC 19-03 made changes to case handling procedures relating to the deferral of cases under Dubo Manufacturing Corporation, 142 NLRB431 (1963), Regions should follow the Unfair Labor Practice Casehandling Manual.
- CG 19-04 – Instructed Regions to urge the Board to adopt the D.C. Circuit precedent, which requires unions to provide the reduced amount of dues and fees for dues objectors in the initial notice to employees; to urge the Board to limit dues authorization window periods; find unions’ certified mail requirements unlawful; and mandate certain union communications with employees concerning untimely revocation requests.
- CG 19-05 –Provided clarification to GC 19-01 and explained that GC 19-01 did not alter the analysis concerning whether a union’s decision to pursue a grievance or not violated the duty of fair representation.
- GC 19-06 – Instructed Regions investigating agency fee objector cases to require unions to provide detailed explanations of the union’s chargeability decisions for each major category of expenses and the method used to determine the portion of expenses chargeable in mixed expenditure categories; to account for any other secondary costs used to support its lobbying activities; and finding no amount de minimis.
- GC 20-08 – Instructed the Regions on how to proceed during investigations in securing the testimony of former supervisors and former agents and how audio records should be dealt with during investigations. Mr. Ohr explained that he was rescinding this memo because it was inconsistent with prior practice. He states that Regions should continue to not accept recordings that violate the Federal Wiretap Act and to apprise individuals who proffer recorded evidence when it may violate state law.
- GC 20-09 – Instructed the Regions to urge the Board to adopt an “arguable merit” standard that reverses the burdens of proof and imposes full liability on a union for its mishandling of grievances.
- GC 20-13 – Required the Regions to urge the Board to make changes involving union neutrality agreements and to adopt the “more than ministerial aid” standard used in union decertification cases.
- OM 19-05 – Instructed Regions that they could include facts related to Charged Party cooperation in complaints. The rescission explains that going forward, Charged Party cooperation or lack thereof should not be mentioned.
- OM 20-06 – Dealt with guidelines and protocols for outreach activities to promote awareness of the NLRA, speaking engagements, and recruitment activities for Field Office staff. The rescission memo states that these activities remain priorities and that going forward, Regional Directors will determine which staff will perform each of the functions.
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