September 20, 2021

Volume XI, Number 263

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September 17, 2021

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NLRB Acting General Counsel Strikes Again, Directs Agency to Withdraw Complaints Attacking Neutrality Agreements

As we recently reported, National Labor Relations Board Acting General Counsel Peter Sung Ohr recently gave us a peek behind the curtain at his prosecutorial priorities as General Counsel when he rolled back a number of General Counsel Memoranda issued by his predecessor, Peter Robb.  Consistent with that roll back, Ohr recently directed the agency to withdraw complaints attacking union neutrality agreements, which were issued at Robb’s direction in an attempt to overturn Board precedent.

In September 2020, former-General Counsel Peter Robb issued a Guidance Memorandum seeking to apply closer scrutiny to neutrality agreements.  (Our blog post discussing Robb’s September 2020 memorandum is here).  In his memorandum, Robb sought to overturn the Board’s decision in Dana Corp., 356 NLRB 256 (2010), which held that neutrality agreements typically do not interfere with employee free choice and thus do not violate the National Labor Relations Act.  Although Robb’s memorandum did not create new law, it put the wheels in motion to overturn Board precedent.  Indeed, a number of complaints attacking neutrality agreements were issued at Robb’s direction and, up until Ohr’s recent roll back, were scheduled to be heard in the coming weeks.

However, on Friday January 29, 2021, Ohr put a stop to Robb’s test of the lawfulness of neutrality agreements and directed the agency to withdraw the complaints issued at Robb’s yearning.  Although Ohr issued this directive only a few days ago, complaints already have been withdrawn and hearings cancelled.  For example, on February 1, 2021, Seattle Regional Director Ronald Hooks issued an order withdrawing a complaint aimed at attacking neutrality agreements.  Citing Dana Corp., Hooks noted that Ohr “does not wish to continue the prosecution of this matter given that the Consolidated Complaint does not state a violation of current law.”

* * *

We expect the Board to be busy over the next several weeks, as Ohr’s recent Guidance Memorandum indicates that the Board will be issuing new policies in the near future.  We will, of course, continue to keep you apprised of pertinent updates as Ohr settles into his new position as Acting General Counsel.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 34
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About this Author

Michael J Lebowich, Labor, Employment, Attorney, Proskauer, Law Firm
Partner

Michael Lebowich is a Partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He...

212-969-3217
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Heylee S. Bernstein Associate Proskauer Labor & Employment Employment Counseling & Training
Associate

Heylee Bernstein is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Heylee earned her J.D. cum laude from Harvard Law School, where she served as the President of the Committee on Sports and Entertainment Law. In addition, she was a Senior Article Editor for the Journal of Sports and Entertainment Law, and served as a Research Assistant in the Labor & Worklife Program. 

1-617-526-9621
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