The National Labor Relations Board rejected a challenge to the authority of its general counsel, saying President Joe Biden had legally removed the agency’s best lawyer from the Trump era.
The United States Supreme Court has ruled out any doubt that Biden had the power to fire Peter Robb in its June ruling in Collins v. Yellena split NLRB said Thursday. Biden then appointed Jennifer Abruzzo for the agency’s general counsel position and she subsequently obtained Senate confirmation, the board noted.
The California-based nursing establishment that challenged Abruzzo’s authority “offers no legal theory to suggest that a general counsel appointed by the President and confirmed by the Senate cannot validly exercise the statutory powers of the general counsel under the national labor relations law, ”said the Democratic majority on the board. .
The NLRB refused in April to comment on arguments related to Robb’s dismissal, leaving it to federal courts. But the decision of the Supreme Court in Collins, confirmation from Abruzzo, and beyond the Nov. 17 expiration of Robb’s term “advising a different approach here,” the majority said.
The issue arose in a case against Park Central Care and Rehabilitation Center for refusing to negotiate with an affiliate of the Service Employees International Union. The full board, made up of five members, ruled that the company had violated federal labor laws by not negotiating with the union.
But the NLRB has split along partisan lines over Robb’s sacking and Abruzzo authority. The two Republican members of the council said in a concurring opinion that the council should have continued to decline to comment on the matter and left it to the courts.
The Supreme Court ruling that changed the minds of Democratic members of the NLRB over the allegations related to Robb’s dismissal concerned a lawsuit brought by shareholders of Fannie Mae and Freddie Mac. The ruling dealt with the president’s power to dismiss the director of the Federal Housing Finance Agency, including certain general precepts taken up by the majority of the NLRB.
The court of first instance Collins the opinion sets out two presumptions: an agency head sits at the discretion of the president, unless otherwise provided by law; and Congress acts intentionally and with purpose when it includes language in one section of a law but omits it in another part of the same law. Meanwhile, the NLRA specifies conditions that would allow a president to remove members of the NLRB, but does not have similar language for attorneys general.
“By applying these two presumptions to the Law, Collins makes it clear that Congress did not intend to limit the president’s power to dismiss the Advocate General, as it did with respect to board members, “the board said. administration.
Even though this Supreme Court ruling did not resolve the dispute over Abruzzo’s authority, Robb’s expiration of tenure on November 17 is significant, the NLRB said. Robb could not serve beyond that date, which came after Abruzzo’s confirmation, the board said.
“If there was any conceivable doubt about the authority of the Advocate General of Abruzzo, it necessarily ended with Robb’s statutory mandate at the latest (if not on the date of Abruzzo’s post-confirmation appointment) “, did he declare.
Park Central Care attorney Louis Cannon of Baker & Hostetler LLP did not immediately respond to requests for comment.
The case is Aakash d / b / a Park Central Care and Rehabilitation Center, NLRB, case 32-CA-282957, decision 12/30/21.