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New Top NLRB Lawyer Kills Predecessor’s Union Neutrality Case

Jan. 30, 2021, 12:05 AM

The NLRB’s new general counsel ended a case that his Trump administration predecessor had put in motion in hopes of curbing unions’ use of neutrality agreements with employers.

Peter Sung Ohr, the National Labor Relations Board’s acting general counsel, directed the agency to dismiss a consolidated complaint against an Embassy Suites by Hilton in Seattle and a Unite Here affiliate, according to an order Friday.

The case illustrates a direct impact of the Biden administration’s decision to fire General Counsel Peter Robb and Robb’s top deputy and then install Ohr, the longtime head of the NLRB’s Chicago office, as the agency’s chief lawyer earlier this week.

NLRB general counsels have effectively unreviewable prosecutorial discretion to choose which unfair labor practice allegations to pursue and what legal positions to take.

Ohr wielded that power to stop the Seattle neutrality agreement case, which was early enough in the litigation pipeline to allow him to act unilaterally. He’ll need an administrative law judge’s permission to pull back an unfair labor practice case once his office has introduced evidence at a hearing, according to the NLRB’s 1992 decision in Sheet Metal Workers Local 28.

Robb’s Policy Goal

The Seattle case was designed to serve Robb’s policy goal of limiting what employers and unions can include in neutrality agreements. Those pacts, which are used in heavily unionized industries like hotels and construction, typically set the terms for aspects of labor organizing campaigns, such as what level of access unions have to employees.

Robb told regional NLRB staffers in a September memo that he wanted to tee up cases that the GC’s office could litigate to change board law on neutrality agreements. He said those contracts can go beyond establishing neutrality and cross the line into impermissible employer support of unions.

Allowing non-employee union organizers access to employer facilities, informing employees about the presence of organizers, permitting union solicitation during work hours, providing unions with workers’ contact information, and making certain statements indicating a preference for a specific union all could be unlawful under the change Robb advocates, according to the memo.

Nearly a year before issuing that memo, however, Robb had revived allegations against the Embassy Suites and Unite Here affiliate related to neutrality agreements that the regional director in Seattle had dismissed. The agency then issued a consolidated complaint against the hotel and the union.

The National Right to Work Legal Defense Foundation, a conservative advocacy group that frequently battles unions in court, represents the worker who filed the charges in the case.

New Sheriff in Town

The agency never accused Embassy Suites or the Unite Here affiliate of violating existing NLRB law with their neutrality agreement, according to the withdrawal order signed by Ronald Hooks, the regional director of the Seattle office.

“Rather, as set forth in the Consolidated Complaint, former General Counsel Peter Robb, pursuant to his prosecutorial discretion, was seeking to have the Board reverse existing case law,” the order said.

Ohr decided to withdraw the complaint since there’s no violation of current law, the order said.

Mark Mix, president of the National Right to Work Legal Defense Foundation, said the case shows the impact of President Joe Biden’s “unprecedented, legally dubious firing” of Robb.

The agency also told the foundation it will withdraw a similar complaint issued in a neutrality agreement case against a union and hotel in Boston, a foundation spokesman said.

But it’s unclear whether the general counsel’s office is litigating any other neutrality agreement cases.

Attorneys for Embassy Suites and the Unite Here affiliate didn’t respond to telephone and email requests for comment.

The case is Unite Here, N.L.R.B., Case 19-CB-227622, Complaint withdrawn 1/29/21.

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

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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