As we reported here and here, there are several challenges to the authority of the Acting General Counsel of the National Labor Relations Board, Peter Sung Ohr, given President Biden’s unprecedented move of terminating the sitting General Counsel, Peter Robb, in January 2021.
One recent challenge to the Acting General Counsel’s authority was brought before the District Court of New Jersey in response to the Board’s petition for an injunction under Section 10(j) of the National Labor Relations Act in a pending unfair labor practice proceeding. Goonan v. Amerinox Processing, Inc., 21-CV-11773 (D.N.J. July 14, 2021).
While the court ruled that the President had the authority to terminate the General Counsel without cause and designate an Acting General Counsel in the interim, the decision is unlikely to be the proper vehicle for a final determination of the issue.
The employer in Goonan was charged with a number of ULPs surrounding the union’s claim that the employer unlawfully terminated several employees because of their support for the union during an ongoing organizing campaign. The General Counsel issued a complaint alleging that the terminations violated the Act. The case went before an ALJ, and the ALJ found that the employer committed a number of unfair labor practices in violation of the Act.
While the complaint was pending before the ALJ, the Board, through its Regional Director, filed the instant petition for an injunction under Section 10(j) of the Act, seeking an order from the district court enjoining the employer from committing unfair labor practices. In its opposition to the 10(j) petition, the employer challenged the Board’s authority to seek an injunction, arguing the Acting General Counsel, who filed the petition on behalf of the Regional Director, did not have any legal authority to prosecute the underlying unfair labor practice charge. According to the employer, the President’s termination of former General Counsel Robb was not in accord with the NLRA and, further, the President’s designation of Peter Sung Ohr did not comply with the Appointments Clause of the U.S. Constitution and was therefore invalid.
The court only briefly addressed the employer’s argument that the petition was invalid because the Acting General Counsel lacked legal authority, finding overall that the validity of the Acting General Counsel did not impact whether the Board could petition the court for an injunction.
On the issue of the President’s ability to terminate the General Counsel without cause, the court concluded that the text of the Act as drafted by Congress provided the President with this power. Section 3 of the Act provides that persons appointed to the Board “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” However, Congress did not include a similar restriction on the President’s ability to terminate the General Counsel. Therefore, the court determined that the plain language of the Act allows the President to “relieve the General Counsel of his or her duties without the process required for Board members.” The Act also explicitly permits the President to designate an Acting General Counsel when a vacancy occurs, without any limitation with respect to how that vacancy came into existence. As such, the court rejected the employer’s argument that the President’s failure to comply with the Appointments Clause invalidated the authority of the Acting General Counsel.
After briefly discussing the President’s authority to terminate a sitting General Counsel, the court concluded that it ultimately had jurisdiction to hear and adjudicate the matter because a petition for an injunction under Section 10(j) is brought by the Board and not the General Counsel. The question before the court, therefore, was whether to grant the Board temporary relief.
The district court’s decision is the first of its kind to assess and rule on the legality of President Biden’s unprecedented decision to terminate the sitting General Counsel upon taking office. However, since the issue of the legitimacy of the Acting General Counsel was not squarely before the court, this decision is unlikely to become the vehicle for further review of Peter Robb’s removal and the subsequent appointment of Peter Sung Ohr as interim General Counsel. However, the court’s analysis may offer a preview of how other federal courts could come out on the issue. As always, we will keep you informed on any new developments.