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After Robb’s Ouster, Employers Fight NLRB’s Case Prosecution

Feb. 17, 2021, 10:05 AM

Employers are raising broad legal challenges in National Labor Relations Board cases based on their contention that the Biden administration lacked the legal authority to fire Peter Robb, the agency’s Trump-era general counsel.

A shipping firm and a Las Vegas casino recently argued that ongoing unfair labor practice cases against them should be dismissed because of Robb’s ouster. Food wholesaling giant United Natural Foods Inc.—represented by a former Republican NLRB chairman—also cited the termination when disputing an order that delayed a hearing.

Board watchers expected employers to argue that new complaints issued by Robb’s successor, acting General Counsel Peter Sung Ohr, lack legitimacy and should be tossed. The legal controversy stems from the National Labor Relations Act defining the conditions for the president to remove board members, but staying silent on the issue of removing the general counsel.

In the wake of Robb’s termination, however, companies have gone even farther by filing challenges in ongoing cases that were initiated under Robb’s authority. Although there’s been only a few so far, the employer objections highlight the potential for litigation over the Trump-era GC’s firing to chew up considerable time and agency resources no matter what the final verdict.

“The argument that’s been put forward is very destructive to the institution,” said Anne Lofaso, a labor law professor at West Virginia University and a former NLRB lawyer.

Raising a broad objection that says the GC’s office lacks the legal authority to move forward with a pending case is relatively easy to do, said David Rosenfeld, an attorney at union-side firm Weinberg Roger & Rosenfeld.

By essentially copying the argument and pasting it into a brief, management lawyers can delay ongoing cases and preserve the issue for appeal, he said.

“I’ve got some CB cases,” Rosenfeld said, referring to the NLRB code for cases against unions, “and I’m half-tempted to make the argument myself.”

‘Scorched-Earth Tactics’

Nevertheless, Rosenfeld and other labor lawyers questioned whether the challenges ultimately will be anything more than a delay tactic—albeit a potent one—even if the U.S. Supreme Court one day rules that Robb’s ouster was improper.

During the Obama administration, the NLRB faced a legal attack on a general counsel’s authority that culminated in the high court’s 2017 ruling in NLRB v. SW General. The court found that Lafe Solomon, an acting GC, wasn’t eligible to continue in that post after he was nominated to be the agency’s Senate-confirmed top lawyer.

That ruling undercut the legitimacy of complaints Solomon issued following his nomination, but the NLRB managed to minimize its damage to other cases.

The board found that employers couldn’t rely on the SW General decision if they hadn’t previously raised the issue of Solomon’s authority. Solomon’s successor also ratified complaints that Solomon issued under the general counsel’s unreviewable prosecutorial discretion.

The board similarly responded to the Supreme Court’s 2014 decision in NLRB v. Noel Canning, which invalidated some 700 reported and unreported rulings because the Obama administration made improper recess appointments to the board. The NLRB later ratified most of its rulings affected by Noel Canning.

The NLRB would have similar avenues to ratify outcomes to respond to an adverse ruling from Supreme Court on Robb’s termination, said Jonathan Spitz, a labor lawyer with management-side firm Jackson Lewis.

“You’ve got to be a zealous advocate for your client,” Spitz said. “But you’ve also got to recognize that you might be employing scorched-earth tactics and not necessarily changing the outcome of a case, just delaying it.”

Challenges Reaching the Board

The handful of employer challenges that have been lodged so far are in the early stages, with some briefing at the board level.

Administrative law judges have rejected motions in recent weeks from Red Rock Casino and H&M International Transport Inc. to dismiss or stay cases pending against them.

The judge was correct to turn aside Red Rock’s motion, said Bethany Khan, a spokeswoman for the Culinary Workers Union, which filed the charges against the casino. Robb had approved the issuance of the complaint and the agency’s move to seek a court injunction against the casino, she noted.

Red Rock’s attorney in the case, Reyburn Lominack of Fisher Phillips, didn’t respond to requests for comment.

H&M asked the NLRB for special permission to appeal the ALJ’s rejection of its motion, arguing the general counsel is tantamount to another member of the board and can’t be fired at the president’s whim. The GC has the same removal protections as board members, the company said.

“To hold otherwise would undermine the independence of the Board, and thus Congressional purpose that the Board make decisions independent of intervention by elected officials or political appointees,” H&M said in a brief to the board.

The NLRB general counsel’s office backed Biden’s power to fire Robb in a brief filed last week, saying the NLRA’s silence on removing the GC reflects lawmakers’ will to not disturb the default rule that presidents can sack Senate-confirmed officers at will. But even if Robb’s termination was improper, that doesn’t justify stopping the agency from prosecuting a case that started on his watch, the GC’s office said.

In a more narrow challenge, United Natural Foods petitioned the board Feb. 10 to appeal a regional director’s decision, which rescheduled a hearing in an unfair labor practice case against affiliates of the International Brotherhood of Teamsters.

The unions asked for the delay to give Ohr a chance to revoke the previously issued complaint against them, but that rationale has no merit because Ohr’s appointment is invalid, said the company, which is represented by Philip Miscimarra, a former NLRB chairman.

Miscimarra, now an attorney with Morgan Lewis, declined to comment. H&M’s general counsel, Jill Sutton, said in a statement that postponing the case undermines the NLRB’s role as a neutral adjudicator of labor law issues.

Lawyers for the unions in the case, Danielle Franco-Malone and Benjamin Berger of Barnard Iglitzin & Lavitt, didn’t immediately respond to requests for comment.

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

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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