NLRB Rejects Challenge to Former General Counsel Robb’s Removal

In a decision today in Aakash, Inc., d/b/a Park Central Care & Rehabilitation Center, 371 NLRB No. 46, the National Labor Relations Board rejected the employer’s contentions that the complaint issued by General Counsel Jennifer Abruzzo was invalid because former General Counsel Peter Robb’s removal from office was unlawful. 

Previously, in National Assn. of Broadcast Employees and Technicians – the Broadcasting and Cable Television Workers Sector of the CWA, AFL-CIO, Local 51, 370 NLRB No. 114 (2021) (NABET), the Board declined to address the validity of the President’s removal of former General Counsel Robb or the subsequent appointment of Acting General Counsel Ohr in the absence of any clear guidance from the federal courts.  However, the Supreme Court subsequently issued its decision in Collins v. Yellen, addressing the President’s removal authority in the context of a law structurally similar to the National Labor Relations Act.  The Court’s decision in Collins forecloses any reasonable legal argument that the President lacked authority to remove General Counsel Robb.  Similarly, the Senate’s subsequent confirmation of General Counsel Abruzzo precludes any claim that Robb should have continued to rightfully hold that office. Finally, the Board noted that since General Counsel Robb’s term expired on November 17, 2021, any doubt as to General Counsel Abruzzo’s current authority has necessarily ended. Thus, a majority of the Board in Aakash determined that it is appropriate to exercise jurisdiction to address the Respondent’s challenge to Robb’s removal, and that this challenge has no legal basis.

Chairman McFerran and Members Wilcox and Prouty issued the decision. Members Kaplan and Ring disagreed with the majority, adhering to their previous views expressed in NABET that issues raised by the removal of former General Counsel Robb should be resolved by the federal courts.