Worker’s attorneys argue Biden-installed Peter Ohr has no authority to force inadequate settlement in blatant attempt to shield union from NLRB ruling

Washington, DC (March 17, 2021) – West Virginia-based Kroger employee Shelby Krocker has filed an opposition to National Labor Relations Board (NLRB) Acting General Counsel Peter Ohr’s attempt to shut down her case, which charges the United Food and Commercial Workers (UFCW) Local 400 union with maintaining illegal dues checkoffs and taking dues money pursuant to those checkoffs.

The opposition was filed with free legal aid from National Right to Work Legal Defense Foundation staff attorneys. It was submitted in response to Ohr’s joint motion with the union to remand the case to NLRB Region 6 in Pittsburgh to impose a settlement designed to shield the union from being forced to provide a full remedy.

Foundation attorneys argue that Ohr’s maneuver is forbidden by NLRB rules and that Ohr is attempting to undermine the Board’s authority. They also argue that Ohr lacks authority because President Biden installed Ohr after firing his predecessor, Peter Robb, without any legal basis.

Krocker initially charged the union with illegally demanding employees sign dues checkoff authorization forms for the deduction of union dues from employee paychecks. The checkoff form union officials used blatantly misleads workers about their rights by prominently stating it “MUST BE SIGNED” in large print.

Krocker’s charge also maintains that union officials unlawfully rebuffed her request to cut off union dues. Because West Virginia has Right to Work protections for its workers, Krocker can’t be legally forced to fund union boss activities as a condition of keeping her job.

NLRB Region 6 initially dismissed Krocker’s charge, but Foundation attorneys successfully appealed this dismissal to former NLRB General Counsel Peter Robb, who sustained the charge and ordered NLRB Region 6 to issue a complaint prosecuting UFCW Local 400 for the violations. Robb found that UFCW Local 400 officials had violated the law in even more ways than Krocker originally asserted, including failing to tell employees that they could end dues deductions at the expiration of a contract.

After an NLRB Administrative Law Judge (ALJ) declined to rule that UFCW Local 400 officials violated the law with their “MUST BE SIGNED” demands and other unlawful provisions, Krocker’s Foundation staff attorneys appealed the case to the NLRB. Her appeal was supported by NLRB General Counsel Robb and has been fully briefed before the Board since September.

Krocker’s opposition contends that Ohr’s latest motion and the inadequate settlement are “bare political attempts to strip the Board of its ability to hear the important issues raised in this case,” and that “the proposed agreement does not fully remedy the unfair labor practices alleged in the Complaint and as shown by the stipulated factual record.” Foundation staff attorneys also point out that it is too late for Ohr and UFCW union officials to seek an informal settlement because the case is already before the NLRB.

More broadly, Foundation attorneys argue for Krocker that Ohr himself lacks authority to file motions in this case because President Biden ousted Peter Robb when he still had several months left on his term as NLRB General Counsel. Since the establishment of the office of NLRB General Counsel in 1947, no sitting General Counsel has ever been terminated 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 Trump’s first year (until his term expired on 10/31/17).

Allowing Ohr to exercise authority in this case, Foundation attorneys argue, “will do irreparable damage to the Board’s status as an independent quasi-judicial agency responsible for the neutral and even-handed resolution of unfair labor practice and representation cases.”

“Almost every day, so-called ‘Acting’ NLRB General Counsel Peter Ohr demonstrates he has no problem with turning the NLRB into the Biden Administration’s tool for stifling the rights of independent-minded workers who dare to stand up to Biden’s union boss allies,” commented National Right to Work Foundation President Mark Mix. “Ms. Krocker’s case is one of a growing number in which Foundation-backed workers whose rights were violated by union bosses are challenging Ohr’s authority.”

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 about 200 cases nationwide per year.