After Firing Two, President Biden Appoints a New NLRB General Counsel

Last week, President Joe Biden made headlines by firing Peter Robb, the National Labor Relations Board’s General Counsel (as well as Robb’s top deputy, Alice Stock) after they rebuffed the President’s demand to resign or be fired.  Robb drew ire from labor leaders for pursuing “employer-friendly” interpretations of the National Labor Relations Act.  However, Robb’s term didn’t expire until November 2021 and, traditionally, a new president allows the NLRB General Counsel to serve out his or her term.

On Monday, President Biden appointed veteran NLRB attorney Peter Sung Ohr to serve as Acting General Counsel of the NLRB.  While Ohr will look to rollback Robb’s employer-friendly policies, Robb is weighing whether to challenge the legality of his firing and employers are left asking what the whole mess means to them.  In short, Ohr’s appointment means a shift in federal labor policy and more uncertainty about what is to come.

NLRB’s Top Enforcement Officer

The NLRB’s General Counsel decides which labor disputes to prosecute and crafts the legal theories staff attorneys present to the NLRB, giving the office significant power to shape federal labor policy.

Since taking office in 2017, Robb had advanced numerous business-friendly interpretations of the NLRA, including:

• A “friendly” settlement of the McDonald’s lawsuit over whether franchisees are joint employers under the NLRA;
• Eliminating the “micro units” established by the NLRB in Specialty Healthcare;
• Eliminating the joint employer standard established by the NLRB in Browning-Ferris;
• Limiting access rights of third-party union organizers to the employer’s property; and
• Allowing employers to cease deducting union dues at expiration of the CBA.

Certainly, Ohr will look to tee up cases that reverse these decisions.  However, Ohr may have to wait for President Biden and the Senate to appoint Democratic members to the five-member NLRB.  At present, Republican members have a 3-to-1 majority on the NLRB.

If Robb’s Firing Was Unlawful, Then ULPs May Be Subject to Challenge

Robb is reported to be considering challenging the legality of his termination.  Since no General Counsel has been terminated, courts will have to decide whether the president has the legal authority to remove the NLRB’s General Counsel prior to the expiration of his term.

If the firing was unlawful, then any unfair labor practice complaints issued by the Acting General Counsel may be invalid.  Thus, employers that receive ULPs will want to be sure to challenge the validity of any action by the Acting General Counsel.

Bottom Line

While Ohr’s appointment certainly means a shift in federal labor policy toward a more “labor-friendly” agenda, it also means that there is more uncertainty as to whether the actions of the Acting General Counsel are lawful given his predecessor’s unceremonious removal from office.

We will continue to monitor this situation as it develops.