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NLRB Lets Top Lawyer Pull Back Brief in ‘Contract Bar’ Case (1)

Feb. 10, 2021, 10:05 PMUpdated: Feb. 10, 2021, 11:26 PM

The NLRB allowed the agency’s new chief lawyer to withdraw his predecessor’s brief critical of a board rule that limits when workers can try to eject an existing union from their workplace.

But Acting General Counsel Peter Ohr can’t submit a replacement brief in the pending case in which the board is reviewing its “contract bar” doctrine, according to a letter Wednesday from the National Labor Relations Board executive secretary’s office.

The deadline for interested parties to file briefs in the case passed about four months ago, the letter noted.

Although it’s uncertain whether pulling the GC’s brief will have any impact on the contract bar case, it marks another change in course at the NLRB’s legal arm since Ohr took over. The Biden administration cleared the way for Ohr by firing Peter Robb, his Trump-era predecessor.

Ohr has also thrown out two sets of Robb-era legal and procedural policies and ended some of his predecessor’s bids to change the law, including the quest to limit unions’ use of “Scabby the Rat” and other inflatable symbols at labor protests.

Contract Bar Under Review

In the pending case on the contract bar, the NLRB is weighing whether to modify or eliminate its prohibition on union decertification elections while a collective bargaining agreement is in effect for up to three years. That doctrine also allows such votes during a brief period near the end of the contract’s life.

The NLRB first recognized the doctrine in a 1939 decision and modified it through the years, narrowing the window for votes at the expiration of a contract.

The board, which is reconsidering it in a case involving Mountaire Farms Inc., received more than 15 briefs from outside parties, including the general counsel’s office.

Under Robb’s leadership, the GC’s office argued that the current version of the contract bar interferes with worker free choice since it can deny them the chance to vote. The rule also undermines labor stability, as its tight window for elections can allow unions that have lost support from the workers it represents to remain in place.

The now-withdrawn GC brief urged the board to eliminate the bar or extend the time for votes before a contract expires.

The NLRB was correct to reject Ohr’s bid to file a new brief, said Patrick Semmens, a spokesman for the National Right to Work Legal Defense Foundation, which represents the worker seeking to oust a United Food and Commercial Workers affiliate. Ohr almost certainly wanted to delay the case by filing his brief, Semmens said.

Attorneys for Mountaire Farms and the union didn’t immediately respond to requests for comment.

The case is Mountaire Farms, N.L.R.B., Case 05-RD-256888, amicus brief withdrawn 2/10/21.

(Updated with advocacy group's comment in the 11th paragraph.)

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

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com