Labor & Employment Law Daily NLRB will not determine lawfulness of the Acting General Counsel’s appointment
Wednesday, May 5, 2021

NLRB will not determine lawfulness of the Acting General Counsel’s appointment

By Pamela Wolf, J.D.

Even if the Board had jurisdiction to review Presidential actions, it would not effectuate the policies of the Act to exercise this jurisdiction; the lawfulness of the appointment is for the courts to decide.

The National Labor Relations Board has declined a charging party’s invitation to take up a challenge to the lawfulness of President Biden’s appointment of Acting General Counsel Peter Sung Ohr after removing former General Counsel Peter Robb before his term had expired. The Republican-majority Board all agreed that “reviewing the actions of the President is ultimately a task for the federal courts.”

Dismissal and exceptions. In National Association of Broadcast Employees and Technicians, an administrative law judge (ALJ) dismissed allegations that a respondent had violated Section 8(b)(1)(A) of the NLRA by sending overbroad and false or misleading evidence-preservation letters to or through the charging party’s legal counsel. The charging party and then General Counsel Peter Robb separately filed exceptions to the judge’s dismissal.

General Counsel removed and replaced. In the meantime, after President Biden was inaugurated, he quickly removed Peter Robb and several days later installed Peter Ohr as Acting General Counsel. On February 12, the Acting General Counsel filed a motion in this case to withdraw the exceptions that had been filed.

The charging party opposed the motion to withdraw objections, arguing that Robb’s removal was contrary to Section 3(d) of the Act, and that President Biden’s designation of Ohr as Acting General Counsel was thus invalid for this reason and because it violated the Appointments Clause of the Constitution. In response, the Acting General Counsel argued that Robb’s removal was lawful and that Ohr’s designation was valid because the General Counsel is removable at will by the President.

Past considerations of the question. The Board noted that this not the first time that it has been asked to consider a challenge to the validity of a president’s actions with respect to one of the Board’s presidential appointees or designees. In the past, these challenges have been addressed in a variety of ways. Some prior Boards have declined to reach the merits of the challenges, relying on a presumption of regularity, while at least one prior Board member has taken the position that the Board lacks jurisdiction to address such challenges. Other Boards have reached the merits of these challenges, but without detailed analysis.

It’s a job for the federal courts. Here, although current Board Members have different views on the appropriateness of these approaches, “we are all in agreement that reviewing the actions of the President is ultimately a task for the federal courts,” wrote the Board. Further, the NLRB lacks authority to remedy an invalid appointment to the Board, or a designation or appointment to serve as General Counsel, unless it is to halt the operation of the Agency, in part or in whole. “That step is in tension with our official duty to faithfully administer the National Labor Relations Act,” the Board explained. “Thus, we have determined that even assuming, arguendo, that the Board would have jurisdiction to review the actions of the President, it would not effectuate the policies of the Act to exercise this jurisdiction. It is for the courts, not the Board, to make the initial and final determinations on the issues presented here.”

Withdrawal of exceptions granted. As to the General Counsel’s motion, withdrawing his predecessor’s exceptions will not affect the Board’s ability to address the ALJ’s dismissal of the allegations that the respondent violated the Act by sending the records-preservation letters. The charging party has also filed exceptions to the dismissal of these allegations and a supporting brief, which remain pending before the Board. Thus, the Board found it appropriate to grant the Acting General Counsel’s motion to withdraw exceptions to the ALJ decision.

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