Peter Sung Ohr has Cemented the Biden NLRB’s Direction Despite Challenges to his Interim Appointment and Prosecutorial Authority

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When President Biden took the unprecedented step of firing National Labor Relations Board (NLRB) General Counsel Peter Robb shortly after taking the oath of office on January 20, observers noted that it was a significant first step toward fulfilling his campaign promise to be “the strongest labor president you have ever had.” President Biden took the second step towards fulfilling his promise just a few days later, when he appointed veteran NLRB attorney and Regional Director Peter Sung Ohr as acting general counsel on January 25. In the seven weeks since Ohr ascended the acting general counsel post, he has taken several steps to advance President Biden’s labor agenda; notably, Ohr has:

  • Rescinded 12 total guidance memoranda Robb issued, including one addressing the legality of employee handbook provisions, two addressing rights of workers who do not wish to join a union or pay dues, and one urging a stricter standard for assessing the legality of “neutrality” agreements.
  • Withdrawn a complaint alleging that an employer provided impermissible support to a union by entering a “neutrality” agreement.
  • Withdrawn the general counsel’s brief in an active case regarding the preclusive effect of the “contract bar” doctrine on decertification elections.
  • Requested that the Board dismiss complaints in cases litigating the coercive effect of “Scabby the Rat” during strikes and pickets.

A change in White House control inevitably stirs the winds of change at the NLRB, and thus some of these actions were foreseeable.  The scope of change instituted and signaled by Ohr in just 52 days as acting general counsel, however, is broader than might be expected from an interim appointee. Challenges to President Biden’s authority to fire Robb and seat Ohr have abounded in recent weeks, so the legitimacy of Ohr’s actions may eventually be determined by the Supreme Court. Regardless, unionized and non-union employers alike should be attentive to the impact of these changes, as they reflect the NLRB’s likely position in future cases.

Moreover, Acting General Counsel Ohr may be further emboldened to exact further change in light of President Biden’s recent public support for union rights.

Less Guidance on the Legality of Employee Handbook Provisions under Boeing for Employers, Unions, and Individual Workers

On February 1 and 2, Ohr rescinded 10 general counsel memoranda (GC memos), and two operations management memoranda. Notably, the rescinded GC memos included GC 18-04, which offered guidance on the lawfulness of certain employee handbook provisions. In its December 2017 decision in The Boeing Co.,1 the NLRB set out three categories of workplace rules and a method for assessing employee handbooks’ potential impact on protected activity. Issued in June 2018, GC 18-04 offered a detailed 20-page explanation of each category, and has since been a useful guide to employers, unions, and individuals litigating the permissibility of workplace rules before the NLRB, particularly rules regarding workplace civility and confidentiality. The NLRB has since authored several decisions interpreting Boeing,2 and Ohr thus perceived limited utility in maintaining the GC memo.  Rescinding GC 18-04 will prejudice litigants by depriving them of a substantive interpretive guide, and critics contend rescission is a first step toward overturning Boeing, which ended years of assault on personnel policies. Both union and non-union employers must get ready for a renewed examination of their policies for National Labor Relations Act (NLRA) compliance under a potential muddled standard.

Union Finances and Lobbying Expenditures will be Protected from Board Scrutiny

Ohr also rescinded GC 19-04 and GC 19-06, which will reduce the burden on unions to protect employees’ statutory rights to refrain from joining unions. GC 19-04 encouraged the Board to overrule Food & Commercial Workers Local 700 (Kroger Limited Partnership), 361 NLRB 420 (2014), which held that a union acted lawfully when it failed to tell a prospective member how much money she would save by paying a non-member “agency fee” in lieu of union member dues. On appeal, the U.S. Court of Appeals for the D.C. Circuit found the NLRB’s decision was moot due to the union’s refunding a portion of the charging party’s dues post-appeal,3 but also noted that Kroger conflicted with the D.C. Circuit’s own prior holding that unions must provide prospective members with sufficient information to decide whether to join a union, including the amount of the non-member agency fee.4 GC 19-04 encouraged NLRB regional directors to litigate cases involving such notices, in hopes of aligning Board precedent with the D.C. Circuit’s ruling.

GC 19-04 also commanded that NLRB regions ensure that employees’ rights to revoke their union dues authorizations are protected. The memorandum explained that employees covered by mandatory “union security” provisions have the right to revoke union dues authorizations at least once per year, as well as upon expiration of a collective bargaining agreement. GC 19-04 instructed that the NLRB should litigate against unions when union security revocation procedures conflict with those rights; therefore, rescinding the memorandum will eliminate NLRB scrutiny of potentially deficient notices to the detriment of employees and protection of unions.

Separately, GC 19-06 instructed that unions should bear the burden of demonstrating the legitimacy of their expenses in any unfair labor practice charge alleging impermissible application of lobbying or other non-representational costs to non-member agency fee payers.  GC 19-06 issued after the NLRB’s decision in United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (2019), which held that private-sector unions cannot charge lobbying and other non-representational costs to non-members. The U.S. Court of Appeals for the First Circuit has since upheld the NLRB’s decision,5 which is in line with Supreme Court precedent commanding that unions separate collective bargaining and lobbying costs. Ohr’s decision to rescind these memoranda suggests the NLRB will seek to strengthen union finances to the detriment of employee free choice under President Biden, despite contrary rulings by federal courts of appeal.

Fewer Limitations on Employer-Union “Neutrality Agreements”

Ohr also rescinded a GC memo regarding union-employer “neutrality agreements,” and withdrew a complaint attacking such an agreement two days prior. Unions and employers sometimes enter neutrality agreements that govern labor-management relations before the union seeks to become workers’ certified bargaining representative. Though pre-recognition agreements are permissible where the employer remains truly “neutral,” such agreements occasionally go beyond strict neutrality, and result in the employer’s providing impermissible support for the union’s organizing activity. GC 20-13 instructed NLRB regional offices to scrutinize such agreements where the terms might deprive employees of their freedom of choice by (1) agreeing to terms and conditions of employment, (2) restraining employee access to NLRB procedures like elections, or (3) any other term inconsistent with employee Section 7 rights. The memorandum also urged the NLRB to adopt a new higher standard for analyzing the legality of such provisions in line with the standard used to assess employer support for employee decertification campaigns. Presently, employers are not permitted to provide “more than ministerial aid” to employees seeking to decertify an incumbent union, but NLRB decisions apply a less stringent “totality of the circumstances” standard when assessing the legality of neutrality pacts.

On January 29, Ohr withdrew the NLRB’s complaints in cases testing the legality of a neutrality agreement between a company and the union that sought to organize its employees. Withdrawing the complaints in concert with rescinding GC 20-13 indicates that Ohr aimed to prevent the current Republican-majority NLRB from applying the “more than ministerial aid” standard to limit employer-union collaboration for neutrality agreements that arguably impinge on employee rights. Consequently, the current standard for assessing impermissible support for union organizing activity and neutrality agreements will remain in effect. This will ultimately afford unions wider latitude to obtain employer assistance, whether legitimately or through pressure tactics, during organizing campaigns to the detriment of employees’ freedom of choice.

Acting General Counsel Ohr will take no Position regarding the Scope of the NLRB’s “Contract-Bar” Doctrine

On February 10, Ohr withdrew the general counsel’s amicus brief in an ongoing case regarding application of the NLRB’s “contract bar” doctrine that arises when unionized employees seek to remove their incumbent union. In this case, an individual filed a decertification petition aiming to eliminate the union. The union contended the employee’s petition was untimely, as the employer and union had executed an initial collective bargaining agreement, and the NLRB-created contract bar precludes an election petition of any kind for a three-year period after an initial agreement. Following the union’s request for review, the NLRB invited amicus briefing on whether to rescind the contract bar, retain it in its current form, or modify it. The general counsel’s office filed an amicus brief contending that the NLRB should maintain the contract bar doctrine, but expand the window within which individuals can file a petition for decertification during the term of a collective bargaining agreement to give employees more opportunity to free themselves from union representation.

Withdrawing the general counsel’s brief may not impact the ultimate decision, but it indicates Ohr disagreed with Robb’s position. Interestingly, the NLRB’s executive secretary will not allow Ohr to file a replacement brief, as the submission deadline passed several months ago, so it is only possible to speculate that Ohr’s position is that the NLRB should maintain the contract bar in its current form, and limit the opportunity for employees to exercise freedom of choice to vote out an incumbent union.

Acting General Counsel Ohr urged the NLRB to Dismiss Two Complaints Alleging “Scabby the Rat” Amounts to Impermissible Union Coercion

Labor unions often display a large inflatable rat commonly nicknamed “Scabby” during labor disputes, either to call attention to ongoing disputes with a unionized employer, or sometimes as opposition to non-union companies. The NLRB and federal courts have held that displaying Scabby does not violate the NLRA’s prohibition against threatening or coercing employees, or engaging in “secondary boycotts.” The NLRB invited amicus briefing in two active cases6 as to whether the NLRB should overturn precedent that Scabby is not coercive against employees who cross picket lines, or unlawful activity when used to picket secondary employers. In each case, Ohr filed a motion to remand the cases to the NLRB’s regional director, or alternatively dismiss the complaint. Ohr lacks authority to revoke the complaints due to the status of the litigation, so the NLRB will eventually decide the outcome. Should the NLRB ultimately overrule its prior decisions and conclude that using Scabby violates the Act, it is likely that determination will be short-lived given the stance Ohr has taken.

What Happens Next?

Litigants have challenged President Biden’s authority to fire Robb, as well as Ohr’s prosecutorial authority. Such challenges generally contend that the president lacks authority to fire the NLRB’s general counsel because the NLRA contains an express four-year term and no method for removal. Some challengers have also highlighted the politicization of the NLRB that will result from allowing Robb’s ouster to pass. Though it is possible that President Biden’s decision to fire Robb will ultimately be reviewed by the Supreme Court, and that Ohr’s actions could be rendered illegitimate—as parties learned in the wake of the Supreme Court’s Noel Canning decision—the NLRB’s direction and agenda under President Biden have been laid out by Ohr, and will likely advance regardless of whether his recent actions are ultimately voided.

On February 17, President Biden nominated NLRB veteran Jennifer Abruzzo to fill the general counsel role.  Littler’s WPI and Traditional Labor Law Practice Group will continue to track challenges to Robb’s termination and Ohr’s instatement, Abruzzo’s nomination, and the NLRB’s ultimate determinations in the cases discussed above, and will provide updates and analysis where appropriate.  Should you have any questions or seek more details, connect with experienced labor counsel.

 

Footnotes

1 365 NLRB No. 154 (2017).

2 Seee.g.LA Specialty Produce, 368 NLRB No. 93 (2019); Argos USA LLC, 369 NLRB No. 26 (2020); Interstate Management Co. LLC, 369 NLRB No. 84 (2020).

3 Sands v. NLRB, 825 F.3d 778 (D.C. Cir. 2016).

4 Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000).

6 Case Nos. 04-CC-223346, and 25-CC-228342.

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