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NLRB Declines to Wade Into Whether General Counsel’s Appointment Was Lawful

 

On April 21st, the National Labor Relations Board (“NLRB”) issued a short Order in which it declined to weigh into whether President Joe Biden’s nomination of Peter Ohr to serve as the NLRB’s General Counsel was lawful.  (At the present time, Ohr is serving as acting General Counsel.)

Readers will recall that President Biden’s abrupt termination of the prior General Counsel, Peter Robb, was met with much “fanfare” on both sides.  Labor advocates cheered the decision as President Biden sought to flex his muscle and reshape the NLRB into a more labor friendly iteration after he took office in January.  On the other hand, employer side advocates were quick to to criticize President Biden for taking the unusual step to terminate Robb when Robb still had several months left of his four year tenure.

While the National Labor Relations Act (“NLRA”) sets out how a President can remove Board members, it is silent as to whether a President can remove the General Counsel.  (As readers might imagine, both sides sought to portray the NLRA’s silence on the matter to bolster their argument.)  After legal challenges were launched following Robb’s termination and Ohr’s appointment, the NLRB had a chance to weigh in on the case of National Association of Broadcast Employees & Technicians.  (In that matter, the charging party challenged the validity of Robb’s removal and the subsequent appointment of Ohr.)

As some might have expected, the NLRB chose to not make a ruling on the matter and instead indicated it was a situation reserved for the federal courts to resolve.  The NLRB’s ruling is appealable to federal courts although whether that happens is uncertain.  For the time being, this story continues to evolve, much to the chagrin of President Biden and labor advocates.


For additional information:  https://aboutblaw.com/Xd6

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