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Presidents Can Fire NLRB General Counsels, U.S. Judge Says (2)

July 14, 2021, 7:48 PM; Updated: July 14, 2021, 10:05 PM

President Joe Biden’s firing of the National Labor Relations Board’s Trump-era general counsel didn’t prevent the board from seeking a court order against a metal processing company, a New Jersey federal judge said.

Federal labor law clearly gives presidents the authority to fire NLRB general counsels without cause, U.S. District Judge Noel Hillman said in a decision that granted the agency’s request for an injunction against Amerinox Processing Inc. But Hillman didn’t specifically rule on the legality of Biden’s Inauguration Day termination of Peter Robb.

The decision appears to be a poor vehicle to get the broader legal dispute over presidential power to sack NLRB general counsels before the U.S. Supreme Court. Hillman didn’t squarely rule on the issue, nor were his comments on firing general counsels the deciding factor in issuing the injunction.

Acting General Counsel Peter Sung Ohr has faced challenges to his authority in cases before the NLRB based on Robb’s termination, but the board declined to weigh in, saying in April that federal courts should resolve such objections.

The NLRB general counsel acts as the agency’s chief prosecutor in the enforcement of federal labor laws, wielding broad power over what cases to bring and legal theories to pursue. The general counsel also oversees personnel and operations in the agency’s regional offices nationwide.

Amerinox, which faces allegations of unlawfully firing union supporters, argued that Ohr lacked the authority to seek an injunction because Biden unlawfully sacked Robb.

In addition to saying presidents can fire NLRB general counsels, Hillman also noted that the NLRB’s Philadelphia regional director sought the injunction on behalf of the board, not the acting general counsel.

“In sum, because the authority to bring this petition is vested by statute with the Board—individuals appointed and confirmed as the Constitution requires—this Court has jurisdiction to hear and adjudicate this Petition,” Hillman said in the ruling.

The NLRB established reasonable cause to believe Amerinox violated federal labor law and that an injunction would be “just and proper,” the judge said.

The injunction calls on Amerinox to reinstate five terminated workers and stop engaging in any actions related to its workers’ union activities.

NLRB spokeswoman Kayla Blado and the company’s lawyer, Kelly Kindig of Cozen O’Connor PC, declined to comment Wednesday.

The case is Goonan v. Amerinox Processing, D.N.J., No. 21-11773, order 7/14/21.

(Updated with company's lawyer comment in 11th paragraph.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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