Biden fires Trump Labor Commission lawyer heads to 5th Circuit

President that of Joe Biden On unprecedented Inauguration Day, the dismissal of the top Federal Labor Commission attorney in the Trump administration is up for judicial review in a Republican-dominated U.S. appeals court in New Orleans.

Enterprise software company Exela Enterprise Solutions Inc. told the United States Court of Appeals for the Fifth Circuit that Biden did not have the legal authority to remove the former National Labor Relations Board general counsel. Peter Robb.

The unlawful dismissal rendered the actions of Robb’s replacement, including the filing of an unfair labor practice complaint that led to an NLRB decision against Exela, legally invalid, the company argued in documents filed with the courts. courts.

The Fifth Circuit is expected to be the first court to rule directly on the legality of Robb’s ouster, an issue with long-term implications for future presidents’ influence on the NLRB and the agency’s independence from government. opposite the White House.

Judicial disapproval of Biden’s firing of Robb could hamper the agency in the short term, as it could delegitimize the work of Peter Sung Ohr after he replaced Robb and served as acting general counsel. Ohr is now assistant general counsel.

But current general counsel Jennifer Abruzzo, who took over from Ohr after his Senate confirmation in July, has taken administrative action that could protect Ohr’s actions even if his appointment is deemed invalid.

The Fifth Circuit has not set a hearing date or announced the three-judge panel that will hear Exela’s case.

The circuit, which hears cases arising in Texas, Louisiana and Mississippi, is made up of 19 active and senior justices appointed by Republicans, compared to seven selected by Democratic presidents, making it likely that a majority GOP panel will hear. the case.

But Exela faces a long chance to win at the Fifth Circuit, said Anne Lofaso, professor of law at West Virginia University. The Biden administration has a strong case based on the text of the National Labor Relations Act, which includes removal protections for board members but not the general counsel, she said. declared.

“The company’s strategy could be to go to the Supreme Court,” said Lofaso, a former attorney with the Supreme Court branch of the NLRB.

Stone Wall Syndicate

The case stems from Exela’s refusal to negotiate with an affiliate of the United Steel Workers, which represents a group of its employees who provide mail, shipping and receiving, and customer services to customers of the one-to-one business Bristol-Myers Squibb Co. installation in New Jersey.

Exela said it did not bargain because of its objections to the 2019 election. The company fought the union victory, alleging union misconduct tainted the vote.

Acting on Ohr’s authority, a regional NLRB official hit the company with an unfair labor practice complaint in February 2021 for failing to negotiate.

The NLRB ruled against Exela in May, saying the company raised nothing new about its election objections beyond what had already been contentious in the proceedings around that vote.

The board, which was then controlled by a Republican majority, declined to comment on Exela’s challenge to the entire deal based on Biden’s allegedly unlawful firing of Robb, deciding that it was a matter best left to the courts. The board established that hands-off stance on Robb’s firing in an April ruling in a separate case.

Agency action

The NLRB and its legal arm took several important steps related to the Robb ousting debate after the board ruled against Exela.

Abruzzo officially ratified the complaint and the continuation of the case under Ohr shortly after she took over as general counsel. She ratified Ohr’s actions in at least one other case involving a challenge related to Robb’s dismissal.

A similar ratification strategy helped protect more than two years of agency work that was jeopardized by Lafe Solomon as acting general counsel when he was also the nominee for general counsel. from 2011 to 2013, what the Supreme Court of the United States ruled was illegal in 2017. Solomon’s actions were ratified by then-General Counsel Richard Griffin.

The board approved Abruzzo’s ratification of Ohr’s actions in a case involving a Pennsylvania hospital in a February ruling. Abruzzo referred to the hospital’s challenge — which was based on allegations that Biden could not legally fire Robb — in endorsing the case continuing under Ohr.

The NLRB also changed its tone in weighing the dismissal after moving to a Democratic majority in September. The board ruled in December that Biden’s firing of Robb was legal.

Dividing along partisan lines, the majority said the Supreme Court’s June decision in Collins vs Yellen made it clear that presidents can fire NLRB general counsel at will.

“Undermining the Board of Directors”

Exela told the Fifth Circuit that the board’s decision on Robb’s expulsion was irrelevant because the legal scheme at issue in Collins vs Yellen is different from that of the national labor relations law.

The NLRA’s protections against dismissal for NLRB members also apply to the general counsel, as the latter is “fully and inextricably bound to the board”, by virtue of his title and delegated responsibilities, Exela said. . The general counsel is “equivalent” to a board member, the company said.

This protection from withdrawal is necessary given the structure of the NLRB and to protect the agency’s legal arm from political influence, the company argued.

“Allowing the chairman to fire the board’s general counsel without cause would effectively turn the role into a political position that undermines the board itself,” Exela said.

Exela said Abruzzo’s ratification of Ohr’s actions in the case has no bearing on the case before the Fifth Circuit because the notice of ratification is not on file, meaning the court cannot review it.

Plain text

The NLRB did not address Exela’s challenge to Robb’s dismissal, leaving that to the Justice Department while the agency focused on rebutting the company’s other arguments on appeal.

The plain text of the NLRA makes it clear that the general counsel does not have protections against dismissal, which are absent for that position and explicitly spelled out for board members, the Justice Department said.

“Congress clearly knew how to protect the attorney general from removal if it wanted to, but it included no such language in the NLRA,” the government lawyers said.

Neither the NLRB nor the Department of Justice has addressed Abruzzo’s ratification of Ohr’s actions. The United Steel Workers raised it in a brief, saying it would remedy any alleged legal defects in the complaint and the prosecution of the case.

NLRB spokeswoman Kayla Blado declined to comment. Exela’s attorney, Daniel Schudroff of Jackson Lewis PC, did not respond to requests for comment.

The case is Exela v. NLRB5th Cir., No. 21-60426.

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