September 22, 2021

Volume XI, Number 265

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September 20, 2021

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NLRB Declines to Address Validity of Acting GC’s Appointment, Instead Deferring the Issue to the Courts

On April 30, 2021, in National Association of Broadcast Employees & Technicians370 NLRB No. 114 (2021), the Board declined to opine on the validity of President Biden’s termination of former General Counsel Peter Robb and subsequent replacement with Acting General Counsel Peter Sung Ohr.  It now sets the stage for a federal court of appeals – and potentially, the U.S. Supreme Court – to weigh in on the issue of whether Ohr’s appointment and his subsequent actions as Acting General Counsel are valid.

As we discussed here and here, Robb, who was in the last year of his four-year term, was terminated shortly after President Biden’s inauguration on January 20, 2021, after Robb refused to resign.  Robb’s termination, and the subsequent appointment of Acting General Counsel Peter Sung Ohr, has been the basis of legal challenges in several cases before the Board.  The parties challenging the appointment have argued that under Section 3(d) of the Act and the Appointments Clause of the U.S. Constitution, Robb was only removable for cause; Acting GC Ohr asserts that Robb could be removed at will.

The Board’s decision noted that “[t]his was far from the first time that the Board has been asked to consider a challenge to the validity of the President’s actions with respect to one of the Board’s Presidential appointees or designees” and that prior Boards have addressed these challenges in a variety of ways—such as by declining to address their merits, finding a lack of jurisdiction, or rejecting them without detailed analysis.

This Board found that while its members held “different views” on the appropriateness of prior approaches, they were in agreement that the Board had no authority to remedy an invalid appointment without halting the operations of the agency, and doing so would violate its duty to administer the NLRA.  Thus, the Board determined that “[i]t is for the courts, not the Board, to make the initial and final determinations on the issues presented here.”

The Board’s decision is appealable to the federal circuit courts, and may ultimately be decided by the U.S. Supreme Court, which addressed a similar challenge to the appointment of a NLRB General Counsel in 2017, in NLRB v. SW General, Inc., finding that then-Acting General Counsel Lafe Solomon improperly served as NLRB General Counsel while awaiting Senate confirmation that never came amidst political gridlock.

The Board declining to address this issue is not surprising.  We must now wait to see what the federal courts say about this matter.  Should the courts conclude that Robb’s firing and Ohr’s appointment were invalid, it will generate significant uncertainty and years’ worth of litigation. We will certainly keep an eye on this and keep you all posted with any updates.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 122
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About this Author

Steven Porzio Labor & Employment Attorney Proskauer Rose New York, NY
Partner

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing...

212-969-3079
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Scott S. Tan Lawyer Proskauer  Employment Litigation & Arbitration Group
Associate

Scott Tan is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Scott earned his J.D. from the UCLA School of Law, where he served as a problem developer and member of the Moot Court Honors Board. He also worked as a research assistant for Dean Jennifer Mnookin and Professor Hiroshi Motomura.

212-969-3858
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