NLRB Puts Off Challenge to Firing of Former Top Lawyer Robb

The National Labor Relations Board turned aside an early opportunity to wade into the legal debate over the Biden administration’s firing of the agency’s Trump-era general counsel.

The NLRB denied H&M International Transport Inc.’s request for special permission to appeal an administrative law judge’s Jan. 25 ruling, which had rejected the company’s argument that the unfair labor practice case against it couldn’t move forward because the firing was invalid.

H&M is one of a handful of employers that have raised challenges based on the administration’s ouster of ex-General Counsel Peter Robb on Jan. 20 and his top deputy a day later. The National Right to Work Legal Defense Foundation, a conservative advocacy group, has also objected to the firings in ongoing litigation.

Critics of Robb’s ejection argue that President Joe Biden didn’t have the legal authority to fire NLRB general counsels without cause. The NLRB general counsel’s office—under the leadership of acting top lawyer Peter Sung Ohr—and the AFL-CIO contend the National Labor Relations Act gives the GC position none of the termination protections that it provides to board members.

In rejecting H&M’s request, the Republican-majority NLRB said the company failed to show why it can’t make its arguments about the validity of Robb’s sacking in the normal course of the case. One such chance could come during the company’s appeal if the administrative law judge rules against it on the merits of the case, the board said.

H&M’s attorney in the case, Stefan Marculewicz of Littler Mendelson, didn’t immediately respond to requests for comment.

The case is H&M Int’l Transp., N.L.R.B., Case 05-CA-241380, order 3/1/21