NLRB Rebuffs Top Lawyer’s Bid to End Neutrality Pact Case (1)

May 20, 2021, 11:24 PM; Updated: May 21, 2021, 1:26 PM

A divided National Labor Relations Board rejected a request from the agency’s top lawyer to kill part of his Trump-era predecessor’s challenges to neutrality agreements between unions and employers.

The NLRB said in its 2-1 ruling Thursday that the fully briefed and litigated case—which turns on the National Nurses United’s obligation to give a nonmember nurse a copy of a neutrality agreement—gives the board the chance to provide guidance on a union’s duty to fairly represent workers.

The order shows that the Republican-majority NLRB won’t let Acting General Counsel Peter Sung Ohr abandon all of ex-GC Peter Robb’s campaigns to change board law. Ohr took over the reins of the agency’s legal division shortly after President Joe Biden’s Inauguration Day dismissal of Robb.

The National Nurses United case is part of Robb’s attempt to tighten restrictions on neutrality agreements between unions and companies, which typically set some terms for labor organizing campaigns, such as unions’ level of access to employees. The agreements are used in heavily unionized sectors, such as the hospitality, health care, and construction industries.

The National Right to Work Legal Defense Foundation, a frequent union foe, represents Corpus Christi Medical Center nurse Esther Zamora, who tried to persuade her nurse colleagues to oust the union.

While Robb was general counsel, his office filed a complaint against National Nurses United for not giving Zamora a copy of a neutrality agreement with the hospital.

Robb’s office appealed an administrative law judge’s June 2020 ruling that the union had no duty to provide Zamora with a copy of the agreement.

Ohr asked the NLRB in February to either remand the case to a regional director to be dismissed or to toss it directly. Trying to change the board precedent to overturn the administrative law judge’s decision wastes agency resources and runs counter to public interest, Ohr said.

Turning aside that request Thursday, NLRB members John Ring and William Emanuel said the case has been fully litigated, incurring costs to the agency, the litigants, and outside parties.

Chair Lauren McFerran, the board’s only Democratic member, dissented. She said deciding whether to expend further resources doesn’t turn on the level of prior investments, and the chief reason to decide a case isn’t to provide guidance but to resolve a dispute.

National Right to Work Legal Defense Foundation spokesman Patrick Semmens said the NLRB should now rule promptly in the case and prohibit unions from reaching “secret pacts” with employers.

National Nurses United legal counsel Micah Berul said the union agrees with McFerran that the agency’s general counsel shouldn’t be forced to pursue a case that he’s determined is against the public’s interest.

The case is National Nurses Organizing Committee-Texas/National Nurses United, N.L.R.B., Case 16-CB-225123, Order 5/20/21.

(Updated with union's comment. Article originally published on May 21.)

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

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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