Michael Ferrell Quoted in “NLRB’s New Acting GC Can Do a Lot in a Short Time”

Law360 Employment Authority

Michael S. Ferrell, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Chicago office, was quoted in Law360 Employment Authority, in “NLRB's New Acting GC Can Do a Lot in a Short Time,” by Kevin Stawicki. (Read the full version – subscription required.)

Following is an excerpt:

As the National Labor Relations Board's acting general counsel Peter Sung Ohr settles into his new role at the agency where he's spent his life as a career official, experts say his elevation to the temporary gig can still lead to big changes that chip away at the pro-employer shift of the last four years.

With questions already swirling about the legality of President Joe Biden's decision to fire former NLRB general counsel Peter Robb on Jan. 20, Ohr officially filled the vacancy on Monday. Ohr, the former regional director of the NLRB Chicago office, can serve in the acting role for up to 40 days under the National Labor Relations Act, unless a permanent appointment is made by the president.

Ohr won't be on deck for a permanent appointment because U.S. Supreme Court precedent says he can't. In 2017, the justices found in NLRB v. SW General Inc. that the Federal Vacancies Reform Act prohibits any person who has been nominated to fill a vacant position requiring U.S. Senate confirmation from being both the acting officer and the permanent nominee.

But 40 days as acting general counsel is plenty of time for Ohr to reverse many of the actions taken by Robb, even if that doesn't necessarily mean pursuing his own agenda or sweeping new guidance, said William B. Gould IV, a professor at Stanford Law School and a former chair of the NLRB under President Bill Clinton. …

Decentralizing the Agency

Regardless of how long Ohr keeps the job, experts say one of his top priorities will be to undo the agencywide restructuring initiated by Robb that shifted power away from the regional directors' offices and consolidated it in the NLRB's Washington office. …

"I don't think that Peter will continue to centralize control in D.C.," said Michael S. Ferrell of management-side firm Epstein Becker Green in Chicago. "He might bring a return to giving regional directors autonomy like they used to have." …

Scrapping Pro-Biz Guidance

Ohr will also likely seek to rescind pro-business guidance and litigation initiatives pursued under Robb, observers said. Those include Robb's holding that Uber drivers are independent contractors who aren't eligible to unionize, and that employers may violate federal law by entering into "neutrality agreements" with unions pledging not to oppose organizing drives, attorneys said.

It's also expected that Ohr will reverse one of Robb's top priorities: to deflate the union protest symbol Scabby the Rat based on a legal theory that unions violate the NLRA when they deploy the fanged, red-eyed rodent in so-called secondary boycotts. Whether Ohr could technically get rid of cases involving Scabby currently pending before the board is still an open question, but attorneys said the memorandum issued by Robb's office to pursue those cases will be scrapped.

Ohr now has the absolute power to decide which of the thousands of labor abuse allegations the regional offices take up and guide to the board, which will give him the ability to adjust past interpretations of the NLRA. He may draft a mandatory submission list, a document that directs regional directors to send cases involving certain topics or questions directly to his office, rather than handle things themselves, experts said.

But some attorneys argued that Ohr will take a balanced approach to pursuing cases and what will come first is rescinding Robb's guidance, as opposed to pursuing his own agenda items.

"He's a fair-minded guy who's got a liberal view of things but he's not someone who has a political ax to grind," Epstein Becker's Ferrell said.