The National Labor Relations Board continues to have only four out of five seats filled. The term of employer-side attorney William Emanuel will expire on August 27, 2021. To fill the vacant seats, President Biden has nominated two union lawyers to sit on the Board; which, if confirmed by the U.S. Senate, will mean the NLRB has three out of five democratic Board members.
Biden also fired General Counsel Peter Robb and designated Peter Sung Ohr as Acting General Counsel. Mr. Ohr has rescinded several of the prior general counsel memoranda, such as the relaxed standards in determining Duty of Fair Representation union violations and the stricter rules on unions communicating agency fees with members. Instead, on March 31, 2021, Mr. Ohr issued his own general counsel memorandum emphasizing his plan to vigorously enforce the NLRA’s protection of employees’ concerted activities for the purpose of “mutual aid or protection.” Mr. Ohr indicated that this includes employees’ political and social justice advocacy when the subject matter has a “direct nexus” or rather a relationship to workers’ interests as employees.
One recent case of particular importance is Mountaire Farms, Inc., 370 NLRB No. 110 (April 21, 2021). In Mountaire Farms, the Board solicited briefs on the issue of whether it should change its policy on the contract bar doctrine. This doctrine bars a decertification petition during the terms of a collective bargaining agreement in place for three years or less. The Board ultimately did not change its policy, finding there was no compelling case for a change. Thus, contracts will continue to bar elections unless it has a clearly unlawful union security clause. School for Workers faculty Alexia Kulwiec submitted an Amicus Curiae (friend of the court) brief in this case.