Welcome

No ‘Potted Plant,’ Top NLRB Lawyer Wields Power in Interim Role

March 4, 2021, 12:28 AM

Acting NLRB General Counsel Peter Sung Ohr said he didn’t plan on being a “potted plant” when he accepted his temporary post, while also acknowledging that he’ll leave some issues to the Biden administration’s nominee to replace him.

Ohr’s remarks at a virtual American Bar Association conference on Wednesday reflected that tightrope he must walk as an interim head of the National Labor Relations Board’s legal arm, hinting at potential projects, such as guidance on the scope of labor law’s protections, that depend on how much time he has in office.

Since being elevated from the Chicago regional director position after the White House fired Trump-era General Counsel Peter Robb, Ohr has made a handful of moves to end his predecessor’s projects and change the focus of the general counsel’s office. Those actions include rescinding two sets of Robb’s directives and withdrawing or attempting to withdraw from ongoing cases.

Employers have lodged legal challenges to Ohr’s authority as general counsel, arguing the Biden administration lacked the power to remove Robb. Ohr addressed that contention during his ABA conference appearance.

“My actions as acting general counsel should speak for itself as to whether I believe in the legality of the removal and my designation,” Ohr said. “I think it’s pretty clear, otherwise I wouldn’t be doing what I’m doing if I didn’t believe the authority was lawful.”

Legal Issues, Agency Resources

Ohr said he’s assessing which legal issues regional offices should send to his office’s advice division—one of the traditional methods that general counsels use to find cases that can serve as vehicles for advocating changes to board law.

But he said that Jennifer Abruzzo, a former high-ranking NLRB attorney tapped for the permanent general counsel position, should have the opportunity to create that list of issues that will guide the development of labor law.

“I’m mindful of that without just sitting there, waiting,” he said.

The NLRB’s 2017 Boeing decision, which created a new framework for judging employer rules and handbook policies, may be on Ohr’s list of legal issues that should be reconsidered. That ruling “did not square with the National Labor Relations Act,” he said.

Depending on the length of his tenure, the acting GC said he may issue a guidance memo on the NLRA’s protections for workers banding together for mutual aid, which he called a “core part of the act that sometimes gets overlooked” due to “overly nuanced legal analysis.”

By citing that analysis on NLRA protections, Ohr appeared to reference the view that the portion of the law that guards concerted activity—known as Section 7—only covers union activity or labor organizing.

In its decision that authorized class-action waivers in workplace arbitration contracts, the U.S. Supreme Court declined to rule on whether filing or joining class actions are protected activities. Still, Robb unsuccessfully argued to the board in a later case that jointly bringing legal claims wasn’t protected.

Workers start by banding together for mutual aid and protection before any actual union organizing can happen, he said.

“The precursor actions that are fundamental to workers under Section 7 of the act are the cornerstone for any other actions the employees may take,” Ohr said. “The act makes clear the right is to protect the workers—not employers, not labor organization, but workers.”

Aside from analyzing legal issues, Ohr said his other big priority has been assessing the agency’s resources and developing a spending plan.

Sending resources to regional offices is a top priority, he said, which includes addressing staffing shortages and filling empty regional director positions. The agency posted a listing for the regional director position to lead the Atlanta office on Wednesday, he said.

“To the extent I can do this and set it up for Jennifer, I’ll do whatever I can,” Ohr said.

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

To read more articles log in. To learn more about a subscription click here.