National Association of Broadcast Employees and Technicians – The Broadcasting and Cable Television

370 NLRB No. 114 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. National Association of Broadcast Employees and Technicians—The Broadcasting and Cable Tele- vision Workers Sector of the Communication Workers of America, AFL–CIO, Local 51 (Amer- ican Broadcasting Companies, Inc.) and Jeremy Brown. Cases 19–CB–244528 and 19–CB–247119 April 30, 2021 ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, EMANUEL, AND RING On December 3, 2020, Administrative Law Judge Jef- frey D. Wedekind issued a decision in this case, dismiss- ing, as relevant here, allegations that the Respondent vio- lated Section 8(b)(1)(A) of the National Labor Relations Act by sending overbroad and false or misleading evi- dence-preservation letters to or through the Charging Party’s legal counsel. On December 31, 2020, the Charg- ing Party and the then-serving General Counsel separately filed exceptions to the judge’s dismissal of these allega- tions and supporting briefs.1 On February 12, 2021, counsel for the Acting General Counsel filed a motion to withdraw exceptions. In sup- port, the motion states as follows: On January 25, 2021, after having removed the former General Counsel, President Biden designatedPeter Sung Ohr as Acting General Counsel of the Board. The Act- ing General Counsel has since had the opportunity to re- visit the basis for the General Counsel’s exceptions filed in this matter and has decided not to continue the prose- cution of this issue. Accordingly, Counsel for the Acting General Counsel moves to withdraw her exceptions. 1 We omit mention of filings that pertain to issues other than whether the Respondent violated the Act by sending the evidence-preservation letters. 2 This is not the only case in which these issues are implicated. See, e.g., Pittsburgh Post-Gazette, 06–CA–233676 (March 19, 2021) ( deny- ing motion to file supplemental brief changing position on overruling precedent); AM/NS Calvert, LLC, 15–CA–244523, 15–CB–244598 (Feb. 19, 2021) (denying motion challenging RD’s withdrawal of com- plaint); International Union of Operating Engineers Local 150 (Lippert Components), 25–CC–228342 (motion pending to remand to the RD for dismissal of complaint); International Union of Operating Engineers Lo- cal 150 (Maglish Plumbing), 25–CC–230368 (same); International Brotherhood of Electrical Workers Local 98 (Fairfield Inn), 04–CC– 223346 (same); National Nurses Organizing Committee, 16–CB– 225123 (same); International Union of Operating Engineers Local 150 (Donegal Services), 13–CP–227526 (motion pending to withdraw excep- tions); Stericycle, Inc., 04–CA–137660 (motion pending to withdraw The Charging Party filed an opposition to the Acting General Counsel’s motion, the Respondent filed a brief in support of the motion, the Charging Party filed a reply to the Respondent’s brief in support, and the Acting General Counsel filed a reply to the Charging Party’s opposition. The Charging Party’s opposition to the Acting General Counsel’s motion challenges the validity of Acting Gen- eral Counsel Ohr’s designation. As the Charging Party observes, Acting General Counsel Ohr was designated by the President following the removal of General Counsel Peter Robb, who, at the time of his removal from office, was serving a statutory 4-year term ending November 15, 2021. The Charging Party contends that the removal of Robb was contrary to Section 3(d) of the Act. The Charg- ing Party asserts that the subsequent designation of Acting General Counsel Ohr was invalid for these reasons and be- cause it violated the Appointments Clause of the Consti- tution. The Acting General Counsel, in turn, asserts that the removal of Robb was lawful and that the subsequent designation of Ohr was valid because the General Counsel is removable at will by the President. We understand both parties’ positions, and we acknowledge the obvious importance of these issues.2 This is far from the first time that the Board has been asked to consider a challenge to the validity of the President’s actions with respect to one of the Board’s Presidential ap- pointees or designees, including both the General Counsel and the Board members. Previous Boards have addressed these challenges in a variety of ways. Some prior Boards have declined to reach the merits of the challenges, relying on a presumption of regularity.3 At least one prior Board member has taken the position that the Board lacks juris- diction to address such challenges.4 Other Boards have opted to reach the merits of these challenges, albeit often without detailed analysis.5 exceptions to violations found by ALJ); Hospital Menonita de Guayama, Inc., 12–CA–214830 (motion pending to withdraw portions of former General Counsel’s brief arguing for change in precedent). 3 See Center for Social Change, Inc., 358 NLRB 161, 161 (2012) (“Historically, the Board has declined to determine the merits of claims attacking the validity of Presidential appointments to positions involved in the administration of the Act,” and “[i]nstead, it has applied the well- settled presumption of regularity of the official acts of public officers in the absence of clear evidence to the contrary.”). 4 See Center for Social Change, Inc., supra at 161 fn. 2 (2012) (con- curring opinion of Member Hayes). 5 See, e.g., Total Security Management Illinois 1, LLC, 364 NLRB No. 106, slip op. at 2 fn. 5 (2016) (rejecting challenge to appointment of Acting General Counsel Lafe Solomon); Entergy Mississippi, Inc., 361 NLRB 892, 892–893 (2014) (rejecting challenge to recess appointment of Member Craig Becker); see also Bloomingdales, Inc., 359 NLRB DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The current members of the Board have different views on the appropriateness of these approaches, but we are all in agreement that reviewing the actions of the President is ultimately a task for the federal courts. Moreover, the Board has no authority to remedy an invalid appointment to the Board or a designation or appointment to serve as General Counsel, unless it is to halt the operation of the Agency, in part or in whole. That step is in tension with our official duty to faithfully administer the National La- bor Relations Act. Thus, we have determined that even assuming, arguendo, that the Board would have jurisdic- tion to review the actions of the President, it would not effectuate the policies of the Act to exercise this jurisdic- tion. Cf. Contract Services, Inc., 202 NLRB 862 (1973) (declining jurisdiction based on foreign relations consid- erations). It is for the courts, not the Board, to make the initial and final determinations on the issues presented here. Turning to the Acting General Counsel’s motion, with- drawal of his predecessor’s exceptions will not affect the Board’s ability to address Judge Wedekind’s dismissal of the allegations that the Respondent violated the Act by sending the records-preservation letters. The Charging Party has also filed exceptions to the judge’s dismissal of these allegations and a supporting brief, and those excep- tions remain pending before the Board. In these circum- stances, we find it appropriate to grant the Acting General Counsel’s Motion to Withdraw Exceptions to the Admin- istrative Law Judge’s Decision. Dated, Washington, D.C. April 30, 2021 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member _____________________________________ William J. Emanuel, Member _____________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 1015, 1015 (2013) (nonprecedential recess Board decision rejecting challenge to Board recess appointments).