Top Labor Board Lawyer Power Upheld in Appeals Court Ruling (2)

The National Labor Relations Board’s top lawyer had the power to withdraw a complaint against two unions after an employer filed a summary judgment motion in the administrative case, a federal appeals court ruled.

In the US Court of Appeals for the Fifth Circuit’s second ruling on the issue, the court Wednesday affirmed the National Labor Relations Board’s conclusion that then-acting General Counsel Peter Sung Ohr could nix the complaint against two affiliates of the International Brotherhood of Teamsters.

The Fifth Circuit’s ruling clarifies part of the boundary demarcating where the NLRB’s unreviewable prosecutorial discretion over a case ends and where the board’s exercise of its adjudicatory authority begins.

The Fifth Circuit had previously agreed with the NLRB and rebuffed United Natural Foods Inc.’s legal challenge. But the New Orleans-based appeals court reconsidered the issue on remand from the US Supreme Court in light of the high court’s decision in Loper Bright Enterprises v. Raimondo, which ended judicial deference to agencies’ reasonable interpretations of ambiguous laws.

Even under Loper Bright, the NLRB general counsel has “unreviewable discretion” to file a complaint and withdraw those complaints, Judge Stephen Higginson, an Obama appointee who wrote the prior decision in the case, said in the opinion Wednesday.

The company didn’t immediately respond to a request for comment. An NLRB spokesperson declined to comment on the ruling.

UNFI had accused two Teamsters locals of forcing the company to discriminate against employees and refusing to bargain in good faith in 2020. Acting General Counsel Peter Sung Ohr dismissed the charges when President Joe Biden appointed him in 2021.

The company had argued that the case was transferred to the full board through its motion for summary judgment before Ohr dismissed it, making it reviewable. But the appeals panel held that it was not under the NLRB’s jurisdiction yet because it hadn’t started the procedural steps to transfer the complaint.

Andrew Oldham, a Trump appointee, called the reconsideration of the case under Loper Bright an “empty formality” in his dissent and said the majority was narrowing the Supreme Court’s decision “from below.”

“It would be most unfortunate if the Supreme Court overruled Chevron only for inferior courts to continue delegating the judicial power to administrative agencies,” he said.

Judge Patrick Higginbotham, a Reagan appointee, joined the majority.

UNFI was represented by attorneys from Morgan, Lewis & Bockius, L.L.P. Agency lawyers represented the NLRB. The Teamsters locals were represented by attorneys from Barnard Iglitzin & Lavitt, L.L.P.

The case is United Natural Foods, Inc. v. NLRB,, 5th Cir., No. 21-60532, 5/28/25.