Labor Relations Law Blog

President Biden Names Peter Ohr Acting General Counsel of the NLRB

Following the unprecedented firing of National Labor Relations Board (“NLRB”) General Counsel (“GC”), Peter Robb, on January 25, 2021, President Biden designated Peter Sung Ohr (“Ohr”) to serve as Acting GC of the NLRB.  Ohr, a career-long employee of the NLRB, began his career in the NLRB Honolulu Sub-regional Office as a Field Attorney, and in 2011, was appointed Regional Director of the NLRB’s Chicago Regional Office.  As Acting GC, Ohr’s term is limited to forty days. 

Before taking office President Biden identified former Boston Mayor and Building Trades official Martin Walsh as his nominee to serve as Secretary of Labor. Assuming the Senate confirms, the Secretary of Labor will carry significant weight on labor policy and enforcement involving issues including wage and hour, employee benefits, union and management reporting, workplace safety, and hot topic issues such as independent contractor misclassification.

While organized labor was dealt a major setback by the Supreme Court in Janus v. AFSCME, the landmark ruling does not impact the legality of union security clauses in the private sector.    In Janus, the Supreme Court held that the state’s extraction of union dues from non-consenting public employees violates the First Amendment.  The Court overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that state and local governments could lawfully require public employees to pay “agency fees” as a condition of continued employment.  Agency fees are intended to cover costs related to contract negotiation, grievance processing, and contract administration, but are meant to exclude costs related to union lobbying and political activism.  Following Janus, public employees can no longer be compelled to contribute any dues to unions, including so-called agency fees.

In a 1975 case called NLRB v. J. Weingarten, the U.S. Supreme Court first set forth employees’ rights to representation during an employer interview. Over the past 43 years, these “Weingarten rights” have been refined by the National Labor Relations Board and the courts. Weingarten rights issues still arise and are still litigated. For instance, last year the D.C. Circuit Court of Appeals held that Weingarten rights did not apply when an employee was put on paid suspension pending an investigation (Bellagio v. National Labor Relations Board) or when an employee participated in a non-compulsory interview with a peer review committee (Midwest Division-MMC, LLC. v. National Labor Relations Board).

On February 25th, the National Labor Relations Board unanimously vacated its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined standards for establishing joint employer relationships. This action was taken after the NLRB’s Inspector General reported that Board member William Emanuel had a conflict of interest when he ruled on the case.

On February 20th, the United States Supreme Court ruled that in a collective bargaining agreement, no ambiguities should be interpreted by the absence of a provision concerning the duration of retirees’ healthcare benefits. Benefits clearly expire when the collective bargaining agreement itself expires. The Supreme Court’s decision, CNH Indus. N.V. v. Reese, was unanimous.

The National Labor Relations Board is considering modifying its case processing procedures in ways that could benefit employers, according to an internal NLRB memorandum obtained by the paid subscription service Bloomberg Law.

On January 12, President Trump selected Republican John Ring to fill the vacancy created last month by Philip Miscimarra's departure from the five-member National Labor Relations Board. If Ring is confirmed by the Senate, the NLRB will have three Republican and two Democrat members.

On Friday night, right before Chairman Philip Miscimarra’s term ended with the National Labor Relations Board, the Board capped its flurry of rulings by issuing one more decision favorable to employers: PCC Structurals, Inc., 365 NRLB No. 160 (Dec. 15, 2017). This decision overruled the NLRB’s 2011 Specialty Healthcare ruling that permitted unions to organize “micro-units” of employees for voting purposes unless the employer could prove an “overwhelming community of interest” between the petitioned-for employees and other employees. Because it was almost impossible to prove an overwhelming community of interest and because the resulting micro-units frequently were those employees most favorable to unionization, employers often faced a difficult challenge contacting a union’s grouping of employees for organizing.

The National Labor Relations Board gained a Republican majority less than three months ago, but has already disposed of many of the prior Administration’s labor law rules. Just this past week, the NLRB issued 13 decisions, including several important rulings favorable to employers. This bevy of rulings is understandable, given that NLRB Chairman Philip Miscimarra, a Republican, retired on Friday.

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