On the same day of President Biden's swearing-in, the new White House delivered to National Labor Relations Board (NLRB) General Counsel Peter Robb an ultimatum to resign by 5:00 p.m. or be fired. No President in U.S. history had taken such a bold move as the NLRB General Counsel position is a four-year appointment at an independent federal agency. The White House provided no cause for the action.
This move may be the most controversial one ever made by any administration regarding the NLRB. It is not only unprecedented, but many believe it is illegal. Even President Trump never fired President Obama's NLRB General Counsel who served nine months of the end of his term in 2017.
Mr. Biden campaigned that he would become the most pro-union President in history, and the Robb firing proves that to be true. The NLRB General Counsel position is extremely powerful in that it unilaterally determines which cases are to be brought before the NLRB and what policies to argue. The five-member NLRB itself currently has three Republicans and one Democrat, but Mr. Biden will quickly fill the vacant position with another Democrat and in August of this year the term of Republican Member William Emanuel expires, and the Democrats will then control a majority of the five-Member Board also.
There is a danger in taking this unprecedented action, because if the firing is later determined to be illegal, then arguably any complaints issued by the newly-appointed Acting General Counsel may be invalid. In its 2014 ruling in NLRB v. Noel Canning, the U.S. Supreme Court unanimously found that the Obama Administration's 2012 appointments of three NLRB Members violated the Constitution's rules for installing officials when the Senate is not in session. The decision invalidated more than 700 reported and unreported decisions issued by the Board.
President Biden appointed Peter Ohr as Acting General Counsel, who famously ruled several years ago that Northwestern University football players could form and organize a union as employees under the Labor Act. As new Acting General Counsel, Ohr immediately directed the Agency to dismiss certain complaints (lawsuits) pending against Embassy Suites in Seattle and a Unite Here union affiliate, concerning a "neutrality agreement" clause. The complaint considered the neutrality clause an illegal and an unfair labor practice, as illegally forcing unions on employees. Prior General Counsel Robb had sought to address neutrality agreements that go beyond establishing neutrality and cross the line into illegal employer support of unions. According to the position taken by Robb, allowing non-employee union organizers access to employer facilities, informing employees about the presence of organizers, permitting union solicitation during work hours, providing unions with workers' contact information, and making statements indicating a preference for a specific union could be considered unlawful employer support of unions. But Acting General Counsel Ohr, in contrast to Robb, stated there was no violation of current law and therefore he withdrew the complaint, so the case will never be heard. Ohr is trying to get two complaints dropped against unions for deploying large inflatable balloons often presented at labor protests, called "Scabby the Rat," directed toward neutral third parties, contending they are coercive secondary boycotts. Ohr has also quickly moved to rescind many of Robb's guidance memos and has withdrawn a brief filed in a pending case that would make it easier to decertify a union under a collective bargaining agreement. Biden also named Democratic NLRB member Lauren McFerrin to be Chairman of the NLRB, taking over from Republican John Ring, the Republican Chairman since 2018.
Ohr has already rolled back numerous directives issued by ex-General Counsel Robb, which he says he rescinded because they were "inconsistent" with the Labor Act's goal of encouraging collective bargaining and protecting workers' rights. Some of the more important memos rescinded by Ohr include: memo making it easier to prosecute unions for "negligent" behavior that prejudices worker rights; memos that increase the level of detail unions have to include in required financial disclosure filings and those advocating new rules on union collection of member dues and non-member fees; and memos designed to limit Regional Directors' use of subpoenas and other investigatory powers. It should be noted that Ohr did all these things in his first week on the job.
Editor's Note: Unions not only benefit from the more pro-union agenda of the new Labor Board officials, but also because they hope that President Biden will use his "bully pulpit" to voice support for organizing and contract situations in support of organized labor. Indeed, such support from government officials may cause unions to be more aggressive in their demands.
This is part of our March 2021 Newsletter.
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