An Oregon worker is challenging President Joe Biden's day one purge of Trump appointees from a federal agency, arguing that the administration is shielding a major union accused of violating labor law.
Jeremy Brown accused the National Association of Broadcast Employees and Technicians Local 51 of illegally siphoning donations from his paycheck, prompting an investigation from the National Labor Relations Board, the federal government's top labor arbiter. The agency ruled in favor of Brown in December 2019. Its top prosecutor, then-general counsel Peter Robb, opened another investigation after Brown alleged that a union attorney threatened him in the course of the investigation. After Robb's ouster, Biden-appointed acting general counsel Peter Ohr withdrew his support of the complaint.
In a new legal challenge, Brown argues that Biden violated the law by terminating Robb with 10 months remaining on his 4-year term and that any actions taken by the new general counsel are not valid. If he is successful, it could open up similar legal challenges to any decision issued by Biden's NLRB.
Patrick Semmens, vice president of the National Right to Work Foundation, which is representing Brown in the legal challenge, said that the courts must act to prevent one of the biggest labor arbiters in the country from becoming a political tool of presidential administrations. Under these conditions, administrations would be able to shield their preferred political allies through appointments that don't require congressional oversight, according to Semmens.
"If this happens and it isn't rebuffed by courts, I think this is probably the new normal. It's unprecedented," Semmens said.
The NLRB declined to comment on the situation.
NLRB general counsels have traditionally been allowed to fulfill their appointments even if a new president takes office. At the time of his firing, Robb warned that Biden's actions threatened to undermine the agency's credibility and legal authority. The brief echoed many of these arguments, saying that Biden's actions made the general counsel, an independent role, a "purely political position." It further argued that without a Senate confirmation vote for the acting general counsel, Biden's actions are illegal.
The Biden administration did not respond to a request for comment.
The little-known labor arbiter and its partisan composition have been the subject of consequential Supreme Court battles. Biden's move to purge Trump appointees from the board revives an Obama-era conflict over recess appointments to the judiciary that occurred without Senate approval. The Supreme Court rejected a series of Obama appointments to the National Labor Relations Board that took place when the Senate was in recess. The ruling forced the NLRB to reissue numerous decisions after new appointments were made. Now, the board faces questions of whether Ohr's actions should be honored.
"All the board has to do is to deny the acting general counsel's motion to withdraw the brief," said Jerry Hunter, a former general counsel. "The board is not obligated to grant that motion. The board can simply deny that motion, which I hope the board does, and then the board can go forward and decide that case."
Both Hunter and Semmens said that the independence of the National Labor Relations Board is at stake.
"That's what's at stake here, whether this is an independent office or not, or whether this is just something that's a political tool where you can help your political allies, even if that means helping unions violate the rights of the workers they claim to represent," Semmens said.
"What Peter Ohr has been doing since he was appointed acting general counsel has been sad and pathetic," Hunter said. "He's basically taking orders from organized labor, which I think is really hurting the independent role of the NLRB general counsel."
Local 51, the union at the center of the case, declined to comment.