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Top NLRB Lawyer Tries to Squash Ongoing Neutrality Pact Case

Feb. 24, 2021, 9:33 PM

The NLRB’s new top lawyer wants to spike his Trump-era predecessor’s bid to impose new requirements on unions to release neutrality agreements they have with employers.

Peter Sung Ohr, the National Labor Relations Board’s acting general counsel, asked the board on Tuesday to send the case against the National Nurses United back to a regional director, who would then shut it down.

The legal theory of the case—developed under ex-General Counsel Peter Robb—conflicts with existing law and pursuing it “is a waste of valuable Agency resources and not in the public interest,” counsel for Ohr said in the filing.

Robb announced in September his intention to tighten restrictions on neutrality agreements between unions and companies, which typically set the terms for aspects of labor organizing campaigns, such as what level of access unions have to employees. They’re used in heavily unionized sectors, such as the hospitality, health-care, and construction industries.

The case will test the Republican-controlled NLRB’s willingness to accommodate Ohr’s efforts to cut short Robb’s projects and redirect the focus of the general counsel’s office. Although Ohr can act unilaterally early in a case’s lifespan, he needs permission to withdraw it from administrative law judges or the board once they get jurisdiction.

Ohr took control of the NLRB’s legal arm after the Biden administration fired Robb and Robb’s top deputy last month. While his time in office is limited—Jennifer Abruzzo is in line for the general counsel post pending Senate confirmation—Ohr has taken a few bold steps to reorient the GC’s office.

Crosshairs on Advocacy Group

The National Nurses United case is at least the sixth matter involving the National Right to Work Legal Defense Foundation that’s featured Ohr’s moves to countermand actions the general counsel’s office took under Robb’s stewardship.

The foundation, a conservative advocacy organization, has a decades-long history of litigating cases at the NLRB and in the courts to make labor law less union-friendly.

“The full-court press by ‘Acting’ General Counsel Peter Ohr to shut down another case in which a worker is seeking to defend her rights from union boss coercion is appalling,” foundation spokesman Patrick Semmens said in a statement. The case is already before the board, which could rule purely based on the appeal the foundation filed to the administrative law judge’s ruling, he added.

In addition to the nurse union dispute, Ohr’s office has shut down a foundation case involving a union dues dispute that Robb had previously revived on appeal; withdrawn a pair of complaints challenging union neutrality agreements; pulled back a brief in a case on the board’s contract bar policy; and asked to drop its attempt to revive a case against a union.

The foundation has rebutted some of Ohr’s efforts by arguing he was unlawfully appointed because the Biden administration lacked the legal authorization to remove Robb. Employers have also made similar claims to attack Ohr’s authority in cases before the board.

Access to Neutrality Agreements

While Robb was general counsel, his office filed a complaint against the National Nurses United for not giving a nurse, Esther Zamora, a copy of a neutrality agreement with Corpus Christi Medical Center. The National Right to Work Legal Defense Foundation represents Zamora, who tried to persuade her nurse colleagues to oust the union.

Administrative Law Judge Keltner Locke ruled against Zamora in June, saying that the pact—negotiated between the union and the hospital’s corporate parent—didn’t include terms and conditions of employment. The union had no duty to hand it over to Zamora, Locke said.

The NLRB general counsel’s office appealed Locke’s ruling to the board in September, arguing that unions have an obligation to turn over neutrality agreements as part of their fiduciary duties to the workers they represent.

The AFL-CIO responded to arguments raised by the GC’s office and the foundation, urging the board not to go beyond the facts of the case and hand down a sweeping rule imposing a new obligation on unions.

An attorney for the National Nurses United didn’t respond to requests for comment.

Nat’l Nurses Org. Comm.-Texas/Nat’l Nurses United, N.L.R.B., Case 16-CB-225123, motion filed 2/23/21.

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

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

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