Biden administration ushers in change at the NLRB

One of the first things the Biden Administration did after January 20 was to make sweeping changes to the National Labor Relations Board (NLRB), the agency that oversees the conduct of work between unions and employers. On Day One, President Biden demanded the resignation and eventually terminated, the Trump NLRB General Counsel Peter Robb, whose term otherwise would not have ended until November. Robb was responsible for pushing an agenda that would do more damage to unions than any of his Republican-appointed predecessors.

For now, Robb has been replaced by Acting General Counsel Peter Sung Ohr, who is busy trying to fix the damage inflicted on the NLRB and unions by Trump.

Ohr issued Memorandum GC 21-02 that rescinded ten Trump-era memoranda intended to weaken union power. The Acting General Counsel’s actions resulted in two particularly notable changes that will benefit unions immediately: the return to the traditional duty of fair representation standard and a halt on changes to Beck Notices and dues check-off revocations.

Duty of Fair Representation

Trump General Counsel Robb tried to paralyze unions by reinventing the standard for the “duty of fair representation” of members by expanding what unions could be held liable for and by taking employers off the hook for breach of the duty of fair representation claims. Acting General Counsel Ohr has rescinded the Trump/Robb rules.

No increased detail in Beck notices or restrictions on revoking dues check-offs

Acting General Counsel Ohr also rescinded the Trump/Robb rules intended to make it much easier to become a “free rider,” enjoying the rights of union membership without paying dues. With this change, the NLRB will no longer require unions to list the amount of a reduced “agency fee” in the Beck Notice provided to dues objectors and it will not limit a union’s ability to establish rules regarding the time period to submit a dues check-off revocation. 

Additional changes from the NLRB are expected with President Biden’s naming of Democratic appointee to the Board Lauren McFerren as the Chairwoman of the NLRB and with Republican appointee Board Member William Emanuel’s term ending in August 2021. 

Based on the firing of General Counsel Robb and the actions so far of Acting General Counsel Orr, Biden is shaping up to be the most union-friendly Democrat in the White House in the last 50 years.