Labor Board Swats Down Biden Appointee

Nurse argues Biden labor prosecutor is illegitimate

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May 22, 2021

The top federal labor arbiter smacked down a controversial Biden appointee's move to dismiss a worker's complaint against union leaders.

National Labor Relations Board acting general counsel Peter Ohr attempted to withdraw the agency's support for a Texas nurse who accused union and company officials of conspiring against workers. Three members of the five-member NLRB, which enforces federal labor law, said the Biden appointee ignored "significant legal issues" the case presented.

"This case presents significant legal issues regarding the duty of fair representation and the appropriate framework for resolving allegations that a union breached that duty," the board wrote in its decision. "This case presents the Board with an opportunity to examine these issues, based on a fully briefed and litigated record, and to provide guidance to employees and unions alike. Accordingly, after careful consideration, we conclude that the Acting General Counsel's motion should be denied."

The move comes as pressure ratchets up on Ohr, who is facing questions about the legitimacy of his appointment. Several workers have filed appeals in the wake of the Biden administration's firing of two Trump-era labor prosecutors whose terms had yet to expire. These legal challenges could complicate Ohr's decision to shift the board to be more favorable to union leadership, as he has withdrawn or reversed agency guidances put in place by his ousted predecessor.

Texas-based nurse Marissa Zamora accused National Nurses United leadership of striking a deal in secret with hospital management contrary to worker interests. Zamora drew backlash when she tried to organize her fellow nurses to oust the union leaders. Her complaint said that hospital management and union leaders tore down her fliers and denied her "access to post material on protected bulletin boards, where her material would be shielded from vandalism."

Former NLRB general counsel Peter Robb signaled his support for the challenge to the union's authority. Zamora's attorneys argue that Ohr did not have the authority to dismiss the case because his appointment was unlawful.

"The Acting General Counsel has no authority to unilaterally seek dismissal of Ms. Zamora's exceptions," Zamora's response to Ohr's dismissal states. "Finally, the Acting General Counsel had no authority to file the Motion because: (1) the removal of General Counsel Robb was unlawful; and (2) Acting General Counsel Ohr was unlawfully appointed."

In response to a request for comment, Ohr said, "I respect but am disappointed with the Board's majority decision, and we will wait for the Board's ruling on the merit of the case."

In a statement, National Nurses United legal counsel Micah Berul said, "The administrative law judge already found that the union did not violate the law. We agree with Chairperson McFerran that the General Counsel should not be required to continue to pursue this case when he has made a determination that it is not in the public interest to do so." Board chairwoman Lauren McFerran dissented from the ruling.

Ohr's appointment is generating controversy as President Biden's violation of decades of precedent sparks legal challenges, according to National Right to Work Foundation president Mark Mix.

"By moving to have Ms. Zamora's case tossed out, so-called 'Acting General Counsel' Peter Ohr is laying bare President Biden's purely ideological motive behind removing Peter Robb: to allow his union boss cronies to escape legal scrutiny when they violate the rights of workers who refuse to toe the union line," Mix said.

The hospital's management company did not respond to a request for comment.