In his first few days on the job, Acting General Counsel of the NLRB Peter Sung Ohr has withdrawn a complaint that had challenged the use of a neutrality agreement by an employer and union.  This early move by the Acting GC indicates the direction that he will take in attempting to change the course of labor law during the Biden Administration.

In general, a neutrality agreement contains a promise from the employer to remain neutral during a union organizing drive in exchange for the union’s promise not to strike or publicly disparage the employer.  The former NLRB GC who brought the case at issue, Peter Robb, also issued a guidance memorandum that characterized most neutrality agreements as unlawful because they provided illegal assistance to a unions.  (For a more detailed article about that memo, see our previous post here).  Former GC Robb issued the complaint against the employer and the union based on this theory of unlawful union assistance provided by the employer and accepted by the union.

Reversing course, Acting GC Ohr’s ordered the complaint to be withdrawn based on his prosecutorial discretion, stating that, in his view, the neutrality agreement at issue did not violate the law.  Essentially, the Acting GC’s action brings the sometimes murky law on the legal boundaries of neutrality agreements back to the status quo.

This action by the Acting GC demonstrates the power of that office to select the cases that will reach the NLRB and potentially change precedent.  In addition, the withdrawal of the complaint sends a powerful signal to employers and unions that the NLRB will not be policing neutrality agreements outside of the few defined boundaries established in prior precedent.  Unions are likely to be especially receptive to this signal and view it as an early victory in the policy shift on labor issues under the new administration.

Andrew MacDonald is a partner in the firm’s Labor and Employment Department, resident in its Philadelphia office.