In the first known of its kind objection to an ongoing NLRB proceeding, an employer has urged the NLRB to dismiss an unfair labor charge against it, arguing that the agency is unable to prosecute the matter, in light of President Biden’s unprecedented firing of then-General Counsel Peter Robb and Deputy GC Alice Stock, and appointment of Peter Sung as Acting General Counsel.  (Discussed in our earlier blog postings here, here and here.)

In short, the Company argues that President Biden unlawfully terminated Robb, and, therefore, the Acting GC has no legal authority to prosecute labor law violations.  The Company argued that the General Counsel “is tantamount to a member of the Board,” and thus may only be removed for certain reasons as set forth in Section 3(a) of the NLRA – i.e., “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”   Additionally, due to the term appointment and confirmation by the Senate of the General Counsel, the Company argued that the position does not serve at the pleasure of the President and “shows the existence of a for cause termination requirement.”

The Company also cited as evidence the prior quagmire the Board faced between 2011 and 2013, when the then-Acting General Counsel Lafe Solomon conducted his duties while awaiting confirmation that never came amidst political gridlock.  The Supreme Court ruled in 2017 (for very different reasons) that Solomon improperly served as NLRB General Counsel during that time, which cast a significant shadow over the hundreds of cases Solomon and the Regions handled.

Similarly, if successful, the outcome of this argument would be that through November 2021 (the remainder of Robb’s term had he not been fired), any action by the office of the General Counsel will be ultra vires.  In other words, the office of the General Counsel will have no lawful authority to issue complaints and prosecute unfair labor practices.  Then after the term would have expired, the office of the General Counsel will only have authority when a new General Counsel is nominated and confirmed.  The Company requested that the Board dismiss the charge for inability to prosecute or, alternatively, stay the unfair labor practice trial until Robb is reinstated or, as the Company argued, “the taint of his unlawful removal is eliminated.”

Interestingly, the motion will be decided by the existing Republican-majority board, which creates an added layer of uncertainty as to how the Board may decide the motion.