NLRB asked to deny motion filed for Ohr on grounds that Biden illegally fired and replaced Senate-Confirmed General Counsel Peter Robb
Washington, DC (February 17, 2021) – Oregon-based ABC cameraman Jeremy Brown is challenging an attempt by National Labor Relations Board (NLRB) so-called “Acting General Counsel” Peter Ohr to withdraw a brief that Ohr’s predecessor, Peter Robb, filed defending Brown from threats he received from a union lawyer. Brown submitted his opposition brief to the full NLRB with free legal aid from National Right to Work Legal Defense Foundation staff attorneys.
Foundation staff attorneys argue that Ohr has no legal authority to withdraw Robb’s brief because President Biden’s unprecedented firing of Robb breached federal law, and Biden’s subsequent elevation of Ohr to Acting General Counsel violated the U.S. Constitution’s Appointments Clause.
Ohr was installed as Acting General Counsel by President Biden in January, following Biden’s unprecedented move only minutes after his inauguration to oust Robb as General Counsel, despite nearly eleven months remaining on Robb’s Senate-confirmed term.
Since the office of NLRB General Counsel was established in 1947, no sitting General Counsel of the NLRB has ever been terminated by a president before the end of their Senate-confirmed four-year term, not even when the White House changed hands. For example, Obama’s pick for General Counsel, former union lawyer Richard Griffin, remained the General Counsel for most of the first year after Trump’s election (until Griffin’s term expired on 10/31/17).
Brown’s brief contends that the National Labor Relations Act’s “creation of a four-year term” for the NLRB General Counsel and the “absence of language providing that the position serves at the pleasure of the President” together demonstrate that Biden lacked authority to remove Robb. “[C]onverting the Agency’s General Counsel into a purely political position” as Biden attempted with Robb’s firing, the brief continues, “would do irreparable damage to the NLRB’s function as an independent agency responsible for” enforcing private sector labor law.
Regarding Ohr’s installment after Robb’s unprecedented removal, the brief explains that the Appointments Clause of the Constitution “draws a broad and stark distinction between inferior officers (who can themselves be hired by department heads) and principal officers (who must be nominated by the president personally and confirmed by a majority of the Senate).” The brief points out that, “if the President can remove a principal officer and indefinitely assign that officer’s responsibilities to someone who lacks Senate confirmation,” as Biden did, “this central distinction is largely illusory” and no longer provides the Senate a check on the president’s power.
Oregon Cameraman Wins Ruling Charging NABET Bosses with Illegal Dues Seizures
A December 3 ruling by an NLRB Administrative Law Judge (ALJ) found that National Association of Broadcast Employees and Technicians (NABET) Local 51 union bosses have, since April 2019, breached federal labor law by violating Jeremy Brown’s rights under the Foundation-won CWA v. Beck Supreme Court decision.
Beck stipulates that union bosses can only compel employees, like Brown, who decline formal union membership to pay for specific, limited costs directly related to the union’s bargaining functions. An employee cannot be required to pay for the union’s political, lobbying and other non-bargaining expenditures. As applied by the courts and the NLRB, Beck also requires union officials to provide such employees an independent audit of the union’s financial breakdown and the process by which they calculate the reduced fee amount, among other disclosures.
The ALJ ordered that NABET Local 51 provide Brown with “a good faith determination of the reduced dues and fees objectors must pay,” “reimburse Brown for all dues and fees collected” beyond what is required by Beck, with interest, and post notices informing the employees in Brown’s workplace of the decision.
While the case was being litigated, however, Brown received a series of intimidating messages from NABET’s lawyer, who threatened to seek “damages” against Brown if he did not comply with union demands to preserve evidence.
Brown’s charges against NABET concerning the menacing correspondence are now before the full NLRB. Robb’s brief, which Ohr’s motion asks to withdraw, supports Brown’s Foundation-provided attorneys’ argument that the Board should hold that the threats were unlawful.
“Almost every day of Peter Ohr’s ersatz tenure as NLRB ‘Acting General Counsel’ confirms the obvious: that President Biden fired Robb to protect the privileges of his union political allies and help them escape legal scrutiny with ease, always at the expense of workers’ individual rights,” commented National Right to Work Foundation President Mark Mix.
“The full NLRB should reject Ohr’s attempt to cancel Robb’s brief in this case, and rule both that Robb’s removal was unlawful and that Biden’s designation of Ohr as ‘acting’ General Counsel violates the Constitution’s Appointments Clause,” added Mix.
The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.
