NLRB Declines to Address Validity of Acting GC’s Appointment, Instead Deferring the Issue to the Courts
Sunday, May 2, 2021
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.