Proskauer - Labor Relations

As we recently reported, National Labor Relations Board Acting General Counsel Peter Sung Ohr recently gave us a peek behind the curtain at his prosecutorial priorities as General Counsel when he rolled back a number of General Counsel Memoranda issued by his predecessor, Peter Robb.  Consistent with that roll back, Ohr recently directed the agency to withdraw complaints attacking union neutrality agreements, which were issued at Robb’s direction in an attempt to overturn Board precedent.

In September 2020, former-General Counsel Peter Robb issued a Guidance Memorandum seeking to apply closer scrutiny to neutrality agreements.  (Our blog post discussing Robb’s September 2020 memorandum is here).  In his memorandum, Robb sought to overturn the Board’s decision in Dana Corp., 356 NLRB 256 (2010), which held that neutrality agreements typically do not interfere with employee free choice and thus do not violate the National Labor Relations Act.  Although Robb’s memorandum did not create new law, it put the wheels in motion to overturn Board precedent.  Indeed, a number of complaints attacking neutrality agreements were issued at Robb’s direction and, up until Ohr’s recent roll back, were scheduled to be heard in the coming weeks.

However, on Friday January 29, 2021, Ohr put a stop to Robb’s test of the lawfulness of neutrality agreements and directed the agency to withdraw the complaints issued at Robb’s yearning.  Although Ohr issued this directive only a few days ago, complaints already have been withdrawn and hearings cancelled.  For example, on February 1, 2021, Seattle Regional Director Ronald Hooks issued an order withdrawing a complaint aimed at attacking neutrality agreements.  Citing Dana Corp., Hooks noted that Ohr “does not wish to continue the prosecution of this matter given that the Consolidated Complaint does not state a violation of current law.”

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We expect the Board to be busy over the next several weeks, as Ohr’s recent Guidance Memorandum indicates that the Board will be issuing new policies in the near future.  We will, of course, continue to keep you apprised of pertinent updates as Ohr settles into his new position as Acting General Counsel.

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