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Biden Names Acting Top NLRB Lawyer After a Pair of Firings (1)

Jan. 25, 2021, 10:12 PMUpdated: Jan. 26, 2021, 12:10 AM

The Biden administration named veteran National Labor Relations Board attorney Peter Sung Ohr as the agency’s acting general counsel, a move that could stabilize the NLRB’s legal arm after the White House fired two top Trump-era lawyers in successive days.

Ohr, previously the regional director in charge of the agency’s Chicago office, will likely lead the NLRB general counsel’s office until President Joe Biden announces a nominee who is then confirmed by the Senate.

“As a career employee of the NLRB, I am especially proud to continue my work with the smart and dedicated agency staff to vigorously enforce the mission” of the National Labor Relations Act, Ohr said in a statement Monday. “I look forward to actively engaging the public to ensure workers’ fundamental rights of association at the workplace are protected to the fullest extent of the law.”

The general counsel enforces federal labor law, choosing which charges are prosecuted and designing the agency’s legal strategy, while also overseeing staff and case processing in NLRB field offices nationwide.

Back-to-Back Ousters

The White House sacked Peter Robb, the Trump administration’s aggressively pro-business general counsel, shortly after Biden was sworn in on Jan. 20. Alice Stock, Robb’s chief deputy, ascended to the acting GC role, but then was terminated the next day.

Firing Robb and installing Ohr as acting general counsel marks the opening steps of the Biden administration’s effort to reorient the NLRB and change board law toward protecting workers and boosting union rights.

Ohr’s tenure as acting general counsel may be short. The NLRA permits acting GCs to serve a maximum of 40 days unless the president submits a nomination to fill the role to the Senate.

Jennifer Abruzzo, who served as the number two lawyer in the Obama-era NLRB general counsel’s office, is viewed as the front-runner for the general counsel post, according to agency watchers. Abruzzo, a special counsel to the Communication Workers of America, didn’t respond to a request for comment.

Bold Moves by Agency Veteran?

Ohr began his NLRB career as a field attorney in Honolulu in 1997. He served as deputy assistant general counsel in the agency’s Division of Operations-Management, a unit in the GC’s office that supervises all regional offices and personnel, from 2005 until his 2011 appointment to be the Chicago regional director.

In perhaps his most widely known move, Ohr held in 2014 that Northwestern University football players were employees with the legal right to unionize. The board subsequently punted on the issue in 2015, saying most college football teams are from public schools that aren’t under the jurisdiction of federal labor law.

As the acting general counsel, he’ll wield the same power as a Senate-confirmed GC, including the effectively unreviewable prosecutorial discretion over what cases to bring and legal positions to take.

The general counsel has more authority over cases before litigation begins in earnest. As cases go through the pipeline, Ohr would need to get assent from administrative law judges or the board to settle or withdraw previously issued complaints.

Ohr is expected to break from Robb’s approach to labor law, though how boldly he’ll act remains to be seen. Employers will likely challenge the legitimacy of unfair labor practice complaints issued under his authority due to questions about whether the White House had the legal power to remove Robb.

Rolling Back Robb’s Work

Robb’s “outrageous and probably unlawful” termination signals that the Biden administration intends Ohr to be aggressive from the outset, said Phillip Wilson, president and general counsel of the management-side Labor Relations Institute.

“I fully expect the acting GC to quickly begin dismantling the operational guidance and litigation priorities from GC Robb’s tenure,” Wilson said.

One target may be a 2019 advice memo opining that Uber drivers aren’t employees with labor rights under the NLRA, said Celine McNicholas, a former Obama-era NLRB official who works as labor counsel and director of government affairs at the left-leaning Economic Policy Institute.

In addition to rescinding Robb’s memos, Ohr will likely review all of the office’s pending litigation and Robb’s personnel and policy decisions, said Wilma Liebman, a longtime Democratic NLRB member who led the board at the start of the Obama administration.

‘Freeze Mode’

Ohr will probably put a lot of things that Robb had been working—from litigation that could change case law to memos weighing in on novel legal issues—on “freeze mode,” said Mark Gaston Pearce, NLRB chairman during the Obama administration.

But the prospect of a confirmation battle over Biden’s choice for general counsel may limit what Ohr does as acting GC, said Pearce, director of the Workers Rights Institute at Georgetown University Law Center.

“I sincerely doubt there will be any bold moves,” he said. “Whatever gets done in the immediate period might have some impact on the confirmation process for the next nominee.”

(Updated with additional reporting.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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