Acting Top Lawyer at NLRB Faces Another Challenge to His Power

Feb. 17, 2021, 10:53 PM

A conservative advocacy group objected to the new top NLRB lawyer’s bid to countermand his Trump-era predecessor’s appeal in a case against a union, arguing the Biden administration unlawfully changed leadership at the agency’s legal arm.

Acting General Counsel Peter Sung Ohr has no authority to act in the case because he was installed after the White House improperly removed former General Counsel Peter Robb and Robb’s chief deputy, the National Right to Work Legal Defense Foundation argued in a filing Tuesday.

The National Labor Relations Board general counsel’s office faces a small but growing list of challenges to its authority to act in pending cases based on the allegedly unlawful removal of Robb before his four-year term expired in November. Employers have asked the board to dismiss cases that were initiated under Robb, arguing that the general counsel’s office doesn’t have the power to proceed with the cases with Ohr as the agency’s acting top attorney.

The Biden administration’s GC nominee, Jennifer Abruzzo of the Communication Workers of America, likely will face the same types of objections if she wins Senate confirmation.

The arguments raised so far largely center on the text of the National Labor Relations Act, which sets the parameters for firing board members but not for the general counsel. Employers argue the statute grants the general counsel the same removal protections as board members, while the agency’s legal arm and unions claim the president can fire the general counsel at will.

The National Right to Work Foundation, which represents a worker in his dispute with National Association of Broadcast Employees and Technicians, also faulted the Biden administration for firing Alice Stock, Robb’s top lieutenant. By removing Robb and Stock, then selecting a regional director to the acting top lawyer position, the administration installed an “inferior officer” in violation of the U.S. Constitution, the foundation said.

“The full NLRB should reject Ohr’s attempt to cancel Robb’s brief in this case, and rule both that Robb’s removal was unlawful and that Biden’s designation of Ohr as ‘acting’ General Counsel violates the Constitution’s Appointments Clause,” Foundation President Mark Mix said in a statement.

Union’s Take

The broadcast workers union fired back in a brief filed Wednesday, saying the Biden administration had the power to remove Robb.

But if the foundation’s argument is correct, the general counsel’s office is powerless to do anything further in the case and it must be dismissed, said the union’s lawyer, David Rosenfeld of Weinberg Roger & Rosenfeld.

In its brief, the union accused the foundation of making its argument to benefit employers who face unfair labor practice allegations rather than the foundation’s client. The case should be referred to the general counsel’s office to determine if the foundation attorney on the case should be sanctioned, the union said.

The case stems from a dispute between Jeremy Brown, a cameraman who works for ABC, and the National Association of Broadcast Employees and Technicians, which represents camera operators and other ABC employees. Brown, who isn’t a union member, alleged that the union failed to properly handle his objection to paying full dues.

An administrative law judge ruled in December that the union’s improper handling of the dues issue violated federal labor law. But the judge rejected Brown’s claim that the union unlawfully threatened him via letters, which directed him to preserve a litany of information that could be used as evidence related to his dues-handling allegation against the union.

The NLRB general counsel’s office filed an appeal Dec. 31 arguing the board should overturn the judge’s ruling on the evidence-preservation letter.

But under Ohr’s leadership, the general counsel’s office asked the board for permission to withdraw that earlier appeal. The Feb. 12 filing doesn’t explain why Ohr decided the appeal should be pulled back.

National Association of Broadcast Employees and Technicians, N.L.R.B., Case 19-CB-244528, 2/17/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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