Interim NLRB General Counsel Moves Quickly to Re-Focus Agency on Workers’ Rights

The brief time since President Joe Biden’s inauguration has seen dramatic changes at the National Labor Relations Board (NLRB) and other federal labor regulators, signaling the new administration’s commitment to ending the war on workers of the last four years.

The shift at the NLRB began almost immediately, when Trump-appointed General Counsel Peter Robb was asked to resign shortly after President Biden was sworn in to office. As we have discussed before, the NLRB general counsel functions as the top prosecutor in that agency, wielding essentially unreviewable discretion over which cases will be presented to the board. Robb’s priorities had been clear since the first weeks of his tenure, when he issued a sweeping memorandum setting forth his regulatory agenda, and in the intervening years he acted repeatedly to curtail collective bargaining and union power. After the Biden administration took office, Robb refused to resign and was then fired, as was his deputy, whom he had appointed as acting general counsel in the wake of his departure from the agency.

Five days after Robb’s ouster, the Biden administration appointed NLRB career staffer Peter Sung Ohr as the new acting general counsel. Ohr most recently served as the director of the NLRB’s Chicago office, where he oversaw the board’s day-to-day enforcement and regulatory operations. Ohr is perhaps most well known for his 2014 decision finding that Northwestern football players were employees entitled to unionize under the National Labor Relations Act—a decision that was subsequently overruled by the board.

Ohr has surprised some agency observers by acting quickly to rescind several of Robb’s key initiatives. In his memorandum announcing these policies, which was issued within a week of his appointment, Ohr re-affirmed the agency’s commitment to “encourage the practice and procedure of collective bargaining and to protect the exercise by workers of their full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment” and his personal commitment to effectuating this policy.

Policies rescinded under Ohr’s memorandum include:

An attempt to outlaw most types of neutrality agreements, whereby employers agree not to interfere with a union’s organizing effort;
A strict enforcement regime against unions for unintentional errors committed during the processing of grievances;
Placing additional requirements on unions for financial disclosures and collection of dues and non-member fees; and
Restricting the ability of NLRB investigators to obtain evidence from former supervisors who blow the whistle on employer unfair labor practices.

Even before Ohr issued this policy memorandum, he already had taken steps to freeze some of Robb’s enforcement priorities by withdrawing pending unfair labor practice complaints. For example, on Jan. 29, 2021, Ohr withdrew a complaint in NLRB Case 19-CB-227622, which alleged that a neutrality agreement was unlawful. Ohr potentially could take similar action in other pending NLRB cases in which Robb had sought to overturn existing precedent.

Under Section 3(d) of the National Labor Relations Act, Ohr may not serve in an acting capacity for more than 40 days while Congress is in session, unless a permanent nomination has been submitted to the U.S. Senate. While that clock ticks, Ohr is likely to continue to reconsider pending cases and enforcement priorities over the coming weeks. Unions or workers who currently are involved in NLRB proceedings, particularly those involving novel theories or changes to existing law, should seek guidance as to how these ongoing changes in enforcement policy may affect them.

Learn more about Willig, Williams & Davidson’s advocacy on behalf of labor unions, or call the firm at 215.656.3600 to speak to one of our labor lawyers.