NLRB Punts on Challenge to Top Lawyer, Deferring to Courts (1)

The National Labor Relations Board declined to rule on whether the agency’s acting general counsel was legally appointed, saying that federal courts are responsible for answering such questions.

The NLRB also said in its Friday order that it can’t remedy an invalid general counsel appointment—aside from partially or completely shutting down the agency’s operations, which conflicts with its duty to administer federal labor law.

The board has received a series of similar legal challenges filed in the wake of the White House’s Inauguration Day termination of Trump-era General Counsel Peter Robb, its sacking of Robb’s top deputy, and its appointment of Peter Sung Ohr as the agency’s temporary legal chief. The board identified nine other cases that involve the issue.

Challenges based on the contention that President Joe Biden fired Robb illegally—rendering his appointment of a successor invalid—are expected to continue if the Senate confirms Jennifer Abruzzo as NLRB general counsel.

During Abruzzo’s Senate hearing on Thursday, the panel’s top Republican grilled her on her involvement with the Biden administration’s decision to fire Robb.

The root of the legal controversy over Robb’s ouster arises from the National Labor Relations Act defining the conditions for the president to remove board members while staying silent on the issue of removing the general counsel. That sparked the dispute over whether that silence means the president can fire the general at-will or, as challengers argue, only with sufficient cause.

The issue appears to be on a path to the U.S. Supreme Court, which reviewed the validity of an NLRB general counsel appointment in its 2017 decision in NLRB v. SW General. The high court held that Lafe Solomon, an acting general counsel, wasn’t eligible to continue in that post after he was nominated to be the agency’s Senate-confirmed top lawyer.

Although that ruling undermined the legitimacy of complaints Solomon issued following his nomination, the NLRB minimized its impact on other cases. The board found that parties couldn’t premise challenges on the SW General decision if they hadn’t previously raised the issue, and Solomon’s successor also ratified complaints that Solomon issued.

Dispute Between Worker, Union

Friday’s ruling stems from a dispute between a cameraman who works for the ABC television network and the National Association of Broadcast Employees and Technicians, a union for camera operators and other ABC employees. The National Right to Work Legal Defense Foundation, a conservative advocacy group that litigates against unions, represents the cameraman and filed the challenge to Ohr’s authority to act in the case.

The foundation, which is appealing a portion of an administrative law judge’s ruling in the case, won’t be able to press its challenge to Ohr’s appointment in court until the case is closed at the NLRB level.

The board granted a motion from the general counsel’s office to withdraw exceptions to the judge’s ruling that the office filed while Robb was still in charge.

The union’s lawyer, David Rosenfeld of Weinberg Roger & Rosenfeld, said the NLRB’s decision to defer to the courts on the validity of Ohr’s appointment was expected. But by granting the general counsel’s office’s motion to withdraw its exceptions, the board created a problem for the foundation, he said.

Charging parties aren’t allowed to take a different position than the general counsel when appealing an administrative law judge’s order, Rosenfeld said. Now that the GC’s office withdrew its exceptions, Rosenfeld said he plans to file a motion requiring the foundation to withdraw its exceptions.

The foundation didn’t immediately respond to a request for comment.

The case is Nat’l Ass’n of Broadcast Employees & Technicians, N.L.R.B., Case 19-CB-244528, 4/30/21.