Activist NLRB and conservative courts on collision course

The Biden National Labor Relations Board (NLRB) was born in controversy, with the unprecedented termination of General Counsel (GC) Peter Robb and has shown no interest in changing its ways. Acting GC Peter Ohr began his short term by rescinding a dozen GC Memoranda from the Robb era, and that trend has continued under his successor, GC Jennifer Abruzzo.

Return to prounion beginnings

In a series of GC Memoranda published since February 2021, Abruzzo has made clear she intends to return American labor law to its prounion beginnings in the 1930s and 1940s. In her memoranda, Abruzzo has instructed the regional attorneys to seek out cases that will permit the NLRB to overturn decades of precedents she believes unfairly impede employees from organizing into unions.

One of the chief means Abruzzo has proposed for assisting unionization is to radically increase the size and range of penalties imposed on employers that are accused of unfair labor practices during organizing campaigns. Another is espousing union recognition based on card-checks, not elections.

Throughout Abruzzo’s term, the NLRB has been so ardent in its support for unions that at least two companies that have been particular targets of the Board—Starbucks and Amazon—have formally alleged the Board has crossed the line and become an active advocate for unions during elections, rather than neutral government observers.