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National Law Journal

NLRB Lawyer Rolls Back Trump Era Policies

Peter Ohr the acting NLRB General Counsel also dropped a case challenging neutrality agreements

Brian Young's picture
Feb 02, 2021

Just hours after taking the oath of office, President Biden announced that he had fired the anti-union General Counsel to the National Labor Relations Board (NLRB) Peter Robb. After also firing the acting general counsel, who was Robb’s assistant, Peter Sung Ohr was named acting NLRB General Counsel.

Following four years of historic attacks on unions, Ohr has a long list of cases to drop, like Robb’s attempt to make inflatable rats illegal,  and decisions to fix. He started that process this week by announcing that the NLRB will no longer be pursuing a case that challenged a company’s right to stay neutral during a union election.

Through the case against an Embassy Suites by Hilton in Seattle and a Unite Here affiliate, Robb was attempting to get neutrality agreements banned. These agreements say that the company won’t interfere in the union election and will hand over things like contact information for the workers and won’t ban organizers from coming onto the premise. In both the Embassy Suites case and a similar one in Boston at Yotel Hotel, the writing was on the wall that the hotels were going union, so the companies played nice and agreed to not take part in a union avoidance campaign, which Robb believed should be illegal arguing that by staying neutral, the hotel was helping the union. In addition to pursuing the case, Robb issued a memo instructing NLRB regional directors to begin enforcing his interpretation that neutrality agreements were illegal. By refusing to go forward with the case, Ohr is ensuring that the regular standard continues allowing companies and unions to reach a neutrality agreement.

Ohr also rolled back a number of Robb's agency memo's saying that they were “inconsistent” with the National Labor Relations Act’s stated goal of encouraging collective bargaining and protecting workers’ rights, or because they’re obsolete or contrary to board law. These included:

  • a pair of memos that lowered the bar for prosecuting unions, directing NLRB staff to go after unions for “negligent” behavior that the agency previously viewed as a harmless error;
  • two memos that increased the level of detail unions had to include in financial notices and advocated for imposing new rules on their collection of member dues and nonmember fees; and
  • a memo that put new restrictions on agency investigators and lawyers receiving recorded or documentary evidence.

Ohr’s selection as acting General Counsel is also renewing interest in whether the NLRB will declare college athletes to be employees. While he was an NLRB Regional Director, he found the Northwestern University scholarship football players were employees under the National Labor Relations Act. This meant that they were also eligible to organize a union. Ohr said:

“All grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are ‘employees’ under the National Labor Relations Act.”

Northwestern appealed the ruling which stopped a union vote by the players. The University eventually won with a 5-0 decision by the NLRB. However, in January of 2017, Ohr’s position was upheld though by Richard Griffin Jr, President Obama’s final General Counsel, who said scholarship football players at Northwestern were employees and opined that other student-athletes could be considered employees. However, Griffin’s term ran out before more action could be taken on the issue. Robb believed that the football players were not employees and made no progress on the case over the last four years.

Ohr is allowed to serve as General Counsel for 40 days before a new person needs to be named or Ohr’s name needs to be submitted to the Senate for approval as the full-time General Counsel.

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