By Nelson Cary and Alex Ehler
Acting General Counsel Peter Sung Ohr has wasted no time in reversing course at the NLRB’s General Counsel office. Yesterday, less than two weeks after President Biden’s unprecedented removal of the NLRB’s GC, AGC Ohr issued a memorandum (GC 21-02) to the NLRB’s regional offices.
The memorandum rescinds several general counsel memoranda issued by former GC Robb. The memoranda rescinded range from those AGC Ohr asserts are no longer necessary, such as guidance on employee handbooks, to those that are process-oriented, and provided charged parties more transparency in connection with regional office investigations of ULP charges.
A significant number of memoranda rescinded addressed unfair labor practices by unions. For example, GC 19-01 required unions raising a “mere negligence” defense to a duty of fair representation allegation concerning a union’s grievance handling to establish the existence of reasonable procedures or systems to track grievances. GC 19-01 also classified a union’s failure to communicate grievance decisions and/or respond to a grievant’s inquiries as arbitrary conduct.
GC 19-04 required unions to provide the reduced amount of dues and fees for dues objectors in the initial Beck notice. Both of these memoranda, along with eight others, are no longer in effect following AGC Ohr’s actions.
The import of the rescissions above are likely plain to the labor professional. It does not appear that AGC Ohr will simply be a “caretaker,” keeping the case processing machinery at the NLRB running pending Senate confirmation of a new General Counsel.
Rather, the rapid rollback of GC Robb’s efforts has begun. Indeed, AGC Ohr makes clear that more is to come: “Future memoranda setting forth additional new policies will issue in the near future.” For labor professionals on the management side, do not expect much good news for some time to come.