Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: By Jeff Boseley and Tyler Maffia
• Publication year: 2022
• Citation: Vol. 36 No. 2

NLRA CASE NOTES

By Jeff Boseley and Tyler Maffia

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached by email at jeffbosley@dwt.com. Tyler Maffia is an associate in the San Francisco office of Davis Wright Tremaine LLP, who assists employers in labor and employment law matters. He can be reached at tylermaffia@dwt.com.

NLRB FINDS REMOVAL OF FORMER GENERAL COUNSEL ROBB WAS LAWFUL

Aakash, Inc., d/b/a Park Central Care and Rehabilitation Center, 371 N.L.R.B. 44 (2021)

In a 3-2 decision, the National Labor Relations Board (NLRB or Board) held that the removal of former General Counsel Peter Robb was lawful, and that current General Counsel Jennifer Abruzzo had the authority to issue and prosecute complaints.

In the underlying case, the union petitioned to include two voting groups into an existing unit via an Armour-Globe election. Respondent argued that one of the voting groups was improper because it included statutory supervisors under the National Labor Relations Act (NLRA or Act). The Regional Director found that the disputed employees were not supervisors and an election could proceed. The Union won the election.

In a test of certification, respondent refused to bargain with the union, and General Counsel Abruzzo issued a complaint and filed a motion for summary judgment. Respondent admitted the refusal to bargain, but argued that the certification was improper. Respondent also alleged that President Joe Biden's removal of former General Counsel Peter Robb was unlawful; and, as a result subsequent general counsels did not have the legal authority to issue or prosecute the complaint.

The Board found that General Counsel Abruzzo had the authority to issue and prosecute the complaint. The Board noted that, unlike board members, the Act did not limit the President's authority to remove a General Counsel. Further, the United States Senate subsequently approved the President's nomination of Jennifer Abruzzo as General Counsel, which would preclude any claim that her predecessor still held the office. Finally, the Board noted that Robb's term would have expired in November 2021, further negating respondent's argument. The Board granted summary judgment for the General Counsel and against the respondent.

Members Kaplan and Ring concurred in granting summary judgment, but did not join the ruling on the removal of Robb. The...