Lawyers familiar with the National Labor Relations Board are used to “policy oscillation”—the notion that shifts occur in the administration of the National Labor Relations Act after the seating of new presidential appointees. But the first 100 days of President Biden’s administration have produced a record number of seismic policy shifts that limit or destroy individual employees’ rights, all to benefit labor union officials.

First, 23 minutes after taking the oath of office, President Biden fired NLRB General Counsel Peter Robb, even though there were ten months left on Robb’s four-year Senate-confirmed term. Within hours, President Biden also fired Alice Stock, Robb’s principal deputy, who was next in line at the agency. Just three days later, President Biden installed Peter S. Ohr, a career NLRB bureaucrat, as the Acting General Counsel, all without Senate approval or confirmation. The General Counsel is often described as the most powerful appointee in the agency because he or she oversees the regional offices and acts as a gatekeeper over which unfair labor practice cases are brought to the Board for decision.

No previous president had ever fired a General Counsel in the 75-year history of the agency, presumably out of respect for the Constitution’s “advice and consent” process for Senate confirmation, and Congress’ statutory provision of a four-year term for General Counsels that overlaps the staggered five-year terms of the Board members. President Trump, in contrast, allowed former union lawyer Richard Griffin to serve out his term as General Counsel, even allowing Griffin to argue a position to the Supreme Court that contradicted the Administration’s position. Not so for the Biden administration.

Litigants are arguing in several pending cases that Biden’s firing of Robb and the appointment of Ohr as an Acting General Counsel violate the NLRA and the Constitution in several respects, citing the Constitution’s Appointments Clause and cases like Humphrey’s Executor and Wiener v. United States. In Wiener, the Court rejected “the claim that the President could remove a member of an adjudicatory body . . . merely because he wanted his own appointees on such a Commission.” The Court also found that “we are compelled to conclude that no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about it.” Acting General Counsel Ohr has defended his appointment by arguing the President can fire a General Counsel at-will because the National Labor Relations Act does not protect General Counsels with a provision requiring termination only for “good cause.”

Second, once installed, Acting General Counsel Ohr quickly set to work reversing the policies of his predecessor. Only days after being appointed he issued Memo 21-02, rescinding ten of General Counsel Robb’s guidance memoranda. Such a mass rescission of guidance memos is both astonishing and unprecedented. Moreover, General Counsel Robb had issued those memos precisely to protect individual employees from labor union abuses. For example, Acting General Counsel Ohr rescinded these memos:

  • Memo 19-06 protected employees’ right to not fund union political and lobbying activities, in accordance with CWA v. Beck, 487 U.S. 735 (1988) and United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (Mar. 1, 2019), enforced, 975 F.3d 34 (1st Cir. 2020).
  • Memo 18-06 allowed individual employees who wanted to decertify their unions to intervene in cases unions brought against employers to challenge the validity the employees’ decertification petitions.
  •  Memo 19-01 sought to strengthen the duty of fair representation and make it harder for union officials to claim “mere negligence” as a defense to an injured worker’s claim of union malfeasance.
  •  Memo 20-13 sought to challenge “neutrality agreements,” contractual arrangements in which employers agree to either assist, or remain neutral, in union organizing efforts. General Counsel Robb argued that neutrality agreements often give improper employer support to unions and that such agreements should be reviewed using the same “ministerial aid” standard that applies to employers’ assistance with decertification efforts.

Finally, Acting General Counsel Ohr has moved to withdraw cases and briefs filed by his predecessor, all to prevent those issues from being decided by the current NLRB, which still maintains a majority of President Trump’s appointees. For example, Ohr ordered two cases challenging neutrality agreements withdrawn, just weeks before they were set for trial. He asked the Board to remand for dismissal a fully briefed case challenging a union’s refusal to give a copy of its neutrality agreement to an adversely affected employee, stating that he would have never issued that complaint. He successfully withdrew an amicus brief General Counsel Robb had filed in a case of nationwide importance concerning modifications to the “contract bar.” Most recently, Ohr has sought to enforce a last-minute unilateral settlement to moot a fully briefed case challenging the legality of a dues checkoff authorization that contained threatening “MUST BE SIGNED” language.

In sum, President Biden and his Acting General Counsel are working to benefit union officials, to the detriment of individual employee rights in the workplace. The speed of their policy shifts has been staggering to behold, and worker advocates are preparing for even more pro-union decisions from Biden’s upcoming appointees. On top of these shifts at the NLRB, Biden and his allies are pushing for passage of the so-called Protecting the Right to Organize (“PRO”) Act, which would repeal all Right to Work laws, virtually end secret-ballot union elections, and entrench incumbent unions in workplaces for many years despite worker sentiment against them. It is no exaggeration to say that workers’ rights of free choice about unionization are under sustained assault by the Biden administration.