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

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On April 30, 2021, in National Association of Broadcast Employees & Technicians, 370 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.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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