Questions Remain Regarding the Authority of the NLRB’s New Acting General Counsel

Last week we discussed the tumultuous events that led to the ousting of President Trump’s top cop at the National Labor Relations Board and President Biden’s appointment of Peter Ohr as the new Acting General Counsel.

As a brief background, the NLRB’s top lawyer (the General Counsel) has tremendous influence on federal labor policy. For example, the General Counsel has authority to decide which unfair labor practice cases to bring and is responsible for determining the legal theories that the NLRB’s staff attorneys present.

Given the massive effect that this role can have on dictating federal labor policy, it is no surprise that President Biden’s decision to remove Peter Robb was celebrated by labor advocates and denounced by big businesses. In fact, business advocates have begun to question whether President Biden even had the authority to remove Peter Robb in the first place. After all, Robb was the first NLRB general counsel to be forced out in more than half a century (in 1950 a general counsel willingly resigned at the request of incoming president Harry Truman).

On January 25, 2021, a shipping company filed the first challenge to President Biden’s authority. The Company asserted that the Office of the General Counsel (under acting General Counsel Ohr) lacks authority to prosecute labor violations following Robb’s “unlawful removal.”

The question of whether Biden could lawfully fire Robb will turn on an interpretation of the National Labor Relations Act. While the NLRA states that GCs serve four-year terms “with the advice and consent of the Senate,” it is silent on the removal process of a General Counsel. This silence has opened the door for an attack on President Biden’s power to make the change he did. President Biden’s team is likely to note that the NLRA does have restrictions on a President’s ability to remove NLRB Board Members and if Congress had wanted the same restrictions on a General Counsel it would have included it in the text of the NLRA. Business advocates are likely to assert that the Supreme Court has long recognized limits on the president’s power to remove executive officials in charge of “quasi-judicial independent agencies” and stress specific NLRA provisions which demonstrate that the General Counsel should enjoy independence from the White House.

We will keep a close eye on these legal challenges to Acting General Counsel Ohr’s authority. In the meantime and to preserve all challenges, Charged Parties facing an NLRB complaint should consider adding as an affirmative defense that the Acting General Counsel lacks the authority to bring the complaint against them.