New brief contends Biden-appointed Acting NLRB General Counsel Peter Ohr lacks authority to kill case already under consideration by full Board
Washington, DC (March 4, 2021) – Corpus Christi, TX-based nurse Marissa Zamora has just filed an opposition brief defending her case charging National Nurses Organizing Committee (NNOC) union bosses in her workplace with concealing a “neutrality agreement” struck in secret between union officials and HCA Holdings management that covers her hospital. The brief was filed at the National Labor Relations Board (NLRB) with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
Zamora’s case has progressed to the full NLRB in Washington, DC, after an NLRB Administrative Law Judge (ALJ) dismissed a complaint that then-NLRB General Counsel Peter Robb had issued prosecuting the NNOC for hiding the agreement. Though Zamora and Robb had both filed exceptions urging the full Board to reverse the ALJ’s decision, NLRB Acting General Counsel Peter Ohr filed a motion on February 23, 2021, seeking unilaterally to send the complaint back to the NLRB Fort Worth regional office to be dismissed.
Zamora’s brief challenges Ohr’s attempt to kill the case on the grounds that it is already before the full Board, and she “is a full party with a right to have her pending exceptions decided by the Board.” Letting Ohr shut her out at this stage would “infringe on the Board’s exclusive power to adjudicate violations of” federal labor law, the brief asserts.
Further, the brief contends that Ohr lacks the legal authority to even ask the NLRB to end the case because Ohr’s predecessor, Robb, was unlawfully removed by President Biden almost a full year before his term was scheduled to end. “The General Counsel of the Board does not serve at the pleasure of the President,” the brief argues, also asserting that allowing “the President to fire the General Counsel at will would do irreparable damage to the NLRB’s function as an independent agency.”
Robb’s firing was unprecedented. Since the office of NLRB General Counsel was established in 1947, no sitting General Counsel of the NLRB has ever been fired by a president before the end of their Senate-confirmed four-year term, even when the White House changed hands. For example, Obama’s pick for General Counsel, former union lawyer Richard Griffin, remained the General Counsel for most of the first year after Trump’s election (until his term expired on 10/31/17).
“Neutrality agreements” are deals between union officials and employers, usually without the knowledge of employees in a workplace. They frequently contain provisions that require employers to silence opposition to unionization, hand over workers’ personal information for coercive “card check” drives that bypass the protections of a secret ballot election, provide union organizers with preferential access to the workplace, and even ensure employers will oppose later efforts to decertify, or remove, the union.
In Zamora’s case, she began circulating fliers and other materials in June 2018 to educate her coworkers on how they could obtain a vote to decertify the union. A brief supporting her exceptions recounts that union agents “repeatedly ripp[ed] down her fliers” and that HCA officials referenced a secret agreement with the union when they denied “her access to post material on protected bulletin boards, where her material would be shielded from vandalism.”
Zamora subsequently asked both NNOC and HCA officials to show her any “neutrality agreement” that might have triggered those efforts to block her and her coworkers’ rights. All her requests were denied, despite statements by HCA agents to her that indicated a “neutrality agreement” existed.
“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,” commented National Right to Work Foundation President Mark Mix. Ohr has acted to squelch several cases of nationwide import brought by Foundation staff attorneys for workers.
“The fact is, even if Ohr were not installed in this position in utter defiance of law and precedent, this issue is already before the full Board whose members would be fully justified in ruling on the case purely on the exceptions Ms. Zamora filed to the ALJ’s decision,” Mix added.
The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in around 250 cases nationwide per year.