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Fifth Circuit Court of Appeals Rejects Argument that President’s Removal of Former NLRB General Counsel was Improper, Upholding Validity of NLRB Complaint

Office of Public Affairs

On behalf of the NLRB Office of the General Counsel, Washington, DC

On Friday, April 22, 2022, a three-judge panel of the United States Court of Appeals for the Fifth Circuit issued a unanimous decision in Exela v. NLRB rejecting the argument that the President’s removal of former NLRB General Counsel Peter Robb was improper.  The Court held that the President had the authority to remove and replace the NLRB’s General Counsel and thus, the NLRB’s complaint, issued by Acting General Counsel Peter Sung Ohr, was valid.  

In the decision authored by Judge Clement, and joined by Judges Stewart and Elrod, the Court explained that the President’s power to remove derives from Article II of the Constitution and that no provision of the National Labor Relations Act (NLRA) curbed that power with respect to the NLRB General Counsel.  This is in stark contrast to Congress’s clear and unequivocal provision of removal protection for NLRB Members.  Accordingly, the Court upheld the validity of the NLRB complaint at issue and enforced the Board’s order finding that Exela violated Sections 8(a)(1) and (5) of the NLRA.

The Court’s decision also notes that, in December 2021, the Board rejected a challenge to the legitimacy of General Counsel Robb’s removal and General Counsel Abruzzo’s subsequent appointment in a case called Aakash, Inc., 371 NLRB No. 46 (Dec. 30, 2021).  In that decision the Board noted that a recent Supreme Court decision “foreclosed any reasonable argument that the President lacked authority to remove [the] General Counsel.”

The Exela case was litigated in the Fifth Circuit Court of Appeals by a team of NLRB attorneys from the Appellate and Supreme Court Litigation Branch, as well as attorneys from the Department of Justice, with assistance from the NLRB’s Contempt, Compliance, and Special Litigation Branch.

General Counsel Jennifer Abruzzo said, “The team of attorneys on this case did an excellent job representing the NLRB on this important issue. The Fifth Circuit’s well-reasoned decision will undoubtedly make a difference for employee rights throughout the country.”

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.