We have previously posted about President Biden’s ousting of former NLRB General Counsel Peter Robb and the installation of Peter Ohr as the new Acting General Counsel. Because of the effect that the General Counsel has on directing federal labor policy, the move was celebrated by labor advocates and denounced by big businesses.
Just days after taking over the role, Acting General Counsel Ohr made his presence (and divergence from Robb) known. On January 29, 2021, Ohr directed that the NLRB dismiss a complaint that it had previously filed against a hotel and a Union. Under Robb, the NLRB had alleged that the hotel and union had entered into an unlawful “neutrality agreement.” Neutrality Agreements are used in heavily unionized industries like hotels and construction and typically set the terms for aspects of labor organizing campaigns, such as what level of access unions have to employees. Former General Counsel Robb had taken aim at these type of agreements in situations where he felt that they crossed the line of establishing neutrality and instead led to impermissible employer support of unions.
General Counsel Robb’s Complaint did not assert that the hotel and union were violating current NLRB law. Rather, the Complaint’s intended goal was to modify the law. Acting General Counsel Ohr disagreed that this area of law should be changed, and thus withdrew the Complaint.
This case is an excellent example of the direct impact of the Biden administration’s decision to fire Peter Robb and replace him with Ohr. Because the NLRB General Counsel has wide latitude in his prosecutorial discretion on which unfair labor practice allegations to pursue and what legal positions to take, employers can expect big changes under Ohr. However, it should be noted that under NLRB precedent, Ohr will need an administrative law judge’s permission to retract cases that have progressed further down the line.