Ohr Sets Tone For The Biden Board
Ohr Sets Tone For The Biden Board
The NLRB's Acting GC shows the new Labor Board will actually follow the law.
The first major impact of Peter Sung Ohr’s short tenure as General Counsel of the National Labor Relations Board has been felt. A few days after withdrawing his predecessor Peter Robb’s litigation targeting the legality of neutrality agreements, Ohr issued a memo which wiped away most of Robb’s influence over the Board’s handling of its caseload.
Ohr’s memo is sort of meta, neutering many of Robb’s memos that he issued during his time as General Counsel. These memos—essentially functioning as directives to regional field staff to target certain cases for reversal or to amend past investigative methods—unflinchingly slanted NLRB case law towards employers by either making their lives easier in litigation or attacking longtime union practices. It is impossible that the top labor law attorney in the country could ascend to that role, survey the current field of employer-employee relations, and conclude that the vast majority of his or her energy should be spent expanding prosecution of unions for internal dues mechanisms or contractual grievance handling unless that person had a single-minded focus on further weakening unions. Robb’s agenda was always open and obvious; he was the Captain Ahab hunting the white whale of union funding.
But the best part of Ohr’s memo isn’t that he shifts the agency’s focus away from this hobby horse. It’s the way in which he frames his role and the broader mission of the agency:
Section 1 of the [National Labor Relations] Act makes clear that the policy of the United States is to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of their full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment. As a career employee of the NLRB, I have endeavored to effectuate this policy. As Acting General Counsel, I will continue to work to realize the Act’s purpose.
Ohr proceeds to identify Robb’s tenure as contrary to the NLRA’s statutory purpose:
I have determined that a number of outstanding General Counsel Memoranda are either inconsistent with the above-described policies and/or Board law, or are no longer necessary.
In other words, Robb was a bad General Counsel and his legacy must be erased as much as possible. He was bad not just because of the petty wars he waged, but because his actions were overwhelmingly contrary to the foundational purpose of the Act he was tasked with enforcing. Ohr promises to not ignore this fundamental truth.
While it is common practice for General Counsels to issue memos reversing the policies and priorities of their predecessor, none have been so forceful in their stated intent. Robb’s opening salvo, for example, contained no such ideological rejection of the Obama Board. He hinted only that “[o]ver the years, I have developed some of my own thoughts” regarding national labor policy and proceeded to list the cases he would target for reversal or abandonment. Meanwhile, Lafe Solomon’s first memo as Acting GC was a deeply substantive directive which expanded the utilization of Section 10(j) injunctions. It contained no explicit repudiation of the Bush Board.
Ohr’s memo thus communicates and contextualizes the urgency with which the Labor Board must act to revive its mission. This is not surprising for a career agency official who has (1) seen the agency been sabotaged from the top for the last three years and (2) demonstrated his steadfast commitment to the NLRA’s purpose in high-profile situations. It was precisely these reasons why I thought Ohr would be a great choice for the temporary gig.
The Ohr Era will be brief. It will consist mostly of specific litigation decisions like the neutrality agreement matter as opposed to broad substantive projects. That responsibility will be left to the full-time replacement that President Joe Biden should be nominating any time now for Senate confirmation. But Ohr’s statement, when viewed in conjunction with the administration’s bold action in firing Robb, signals the coming of the most committed Labor Board to “industrial democracy” since the Kennedy-Johnson Boards of the 1960s. Those Boards, said NLRB historian James A. Gross, “came closer to accomplishing the objective [of the NLRA] than any of the boards since 1947.” The Biden Board should consider this a challenge worth accepting.
After witnessing the perversion of Robb's NLRB tenure , it's very satisfying for me to see the perversions end . President Biden has begun to fulfill his promise to labor . Thanks Joe.
I'm also hopeful that in the future legislation can be passed keeping the NLRB out of the hands of anti - Union and anti- CBA adherents.
Lost in the shuffle of the substantive withdrawal of anti-union memoranda is perhaps the most important repudiation of all of these-- the withdrawal of the egregious "snitch memo," GC 20-08, which forced Regional Office investigators to turn over secretly-made recordings (most commonly of captive-audience meetings and investigatory interviews), potentially exposing the employees who made those recordings to direct and indirect retaliation. It compounded this by ordering those investigators to tell the employees what they were going to do and, in effect, coerce them NOT to voluntarily provide critical evidence for those investigations-- evidence which the Regions, had they been doing their jobs properly (admittedly something Robb sought fervently to prevent), would have been subpoenaing anyway if the witnesses turned reluctant. Instead, one suspects many of these charges were simply dismissed for "lack of cooperation."
What made that memo so insidious is that it directly sought to undermine trust between the Board's investigators and its witnesses. That trust is already hard enough to establish in a lot of cases-- people are fearful, confused, don't speak English very well (or at all, sometimes), and so on. Telling people "if you give us your evidence, we're going to rat you out to your employer and leave you twisting in the wind" is just incredibly damaging to the relationships that need to be built in order to win cases.
I'd like to see the new Board, once it's fully constituted, make rules that not only try to prevent this sort of behavior in future, but clearly preempt any state wiretap statutes that would otherwise purport to bar this sort of recording.