NLRB punts to fed courts over whether GC Peter Robb's firing was unlawful

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The Washington Monument and the Lincoln Memorial Reflecting Pool are seen at sunset from inside the memorial as U.S. President Donald Trump participates in a Fox News Channel virtual town hall called "America Together: Returning to Work" about the response to the coronavirus disease (COVID-19) pandemic broadcast from inside the memorial in Washington, U.S. May 3, 2020. REUTERS/Joshua Roberts

(Reuters) - The National Labor Relations Board on Friday declined to rule on whether President Joe Biden's removal of the agency's Trump-era general counsel, Peter Robb, was lawful, saying the task should be left to federal courts.

The board's four members in a case involving a union that represents American Broadcasting Companies Inc employees said that even if they were to find that Robb's firing in January was illegal, the agency lacks the power to remedy the situation.

The NLRB's only option would be "to halt the operation of the Agency, in part or in whole," which would clash with its duty to administer the National Labor Relations Act, the board wrote.

An ABC cameraman in Oregon, represented by the National Right to Work Legal Defense Foundation (NRTW), had argued that because the NLRA provides for a four-year term for the general counsel, Robb could not be removed without cause. Robb's term was set to expire in November.

And because the firing was illegal, the acting general counsel appointed by Biden, Peter Sung Ohr, had no authority to withdraw his office's appeal of an administrative law judge's December ruling in the case, the cameraman claimed.

The NRTW did not immediately have comment. The union, the National Association of Broadcast Employees and Technicians, and its lawyers at Weinberg Roger & Rosenfeld did not respond to requests for comment.

The case is one of several in which businesses or workers have challenged Robb's firing, which marked the first time an NLRB general counsel was removed from office. Biden did not explain the move, but many Democrats, unions and worker advocates have said Robb improperly limited the board's ability to investigate and remedy unfair labor practices.

Biden has nominated Jennifer Abruzzo, who served as deputy general counsel at the NLRB during the Obama administration, to become general counsel.

At a Senate confirmation hearing on Thursday, Abruzzo acknowledged that she and other members of a White House transition team had recommended that Biden remove Robb over concerns about his management of the agency.

The board's ruling on Friday can be reviewed by a federal appeals court and, potentially, the U.S. Supreme Court.

The case is National Association of Broadcast Employees and Technicians, National Labor Relations Board, No. 19-CB-244528.

For the union: Anne Yen of Weinberg Roger & Rosenfeld

For the worker: Aaron Solem of the National Right to Work Legal Defense Foundation

For the general counsel: Sarah Ingebritsen

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at