Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—5th Cir.: General Counsel’s prosecutorial discretion persists post-Chevron, (May 29, 2025)

By Jason Albright, J.D.

The NLRB had concluded that Acting General Counsel Ohr’s decision to withdraw charges against a union was an unreviewable act of prosecutorial discretion.

United Natural Foods Inc. is not entitled to review of NLRB General Counsel Peter Ohr’s decision to withdraw unfair-labor-practice charges that his predecessor had issued against two Teamsters locals, despite the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Fifth Circuit held. Finding that the issue is unaffected by the overruling of Chevron, the court observed that the NLRA’s statutory division of agency responsibilities supports the conclusion that the General Counsel retains the prosecutorial authority to dismiss a complaint prior to the scheduled hearing, as here, when the Board is set to begin adjudication, and that Ohr was validly appointed after “President Biden lawfully removed former-General Counsel Robb without cause.” Judge Oldham dissented (United Natural Foods, Inc. v. NLRB, No. 21-60532) (5th Cir. May 28, 2025)).

Union ULP charges and complaint. On October 28, 2019, according to the court, United Natural Foods Inc. (UNFI) filed an unfair labor practice charge with the NLRB, alleging that International Brotherhood of Teamsters Local 117 and Local 313 unlawfully (1) attempted to impose union representation on certain of UNFI’s employees, (2) attempted to cause UNFI to discriminate among its employees, and (3) refused to bargain with UNFI. Local 117 also filed an unfair labor practice charge against UNFI.

In turn, on July 29, 2020, the Board’s Regional Director for Region 19, acting on behalf of the Board’s General Counsel at the time, Peter B. Robb, issued a Consolidated Complaint alleging that the locals had violated Sections 8(b)(1)(A), 8(b)(2), and 8(b)(3) of the NLRA.

Removal of General Counsel Robb. In January 2021, President Biden removed Robb as General Counsel and designated Peter Sung Ohr as Acting General Counsel.

Acting General Counsel Ohr. Subsequently, the locals moved to postpone the scheduled hearing so that Ohr could review the complaint and determine whether his office wished to continue pursuing the case. The Regional Director granted the request, rescheduling the hearing to April 6. The unions also wrote directly to Ohr to request that he reconsider the decision to issue a complaint against them.

Employer’s motion for summary judgment. On February 1, UNFI filed with the Board a motion to sever the case against UNFI from the case against the locals, to transfer the case against the locals from the administrative law judge (ALJ) to the Board, and for summary judgment against the locals.

Ohr’s withdrawal of charges. Before the Board ruled on the motion, however, the Regional Director, now acting on behalf of Ohr, issued an order (the “RD Order”) severing the claims against UNFI and withdrawing the Consolidated Complaint to the extent that it alleged claims against the unions. The RD Order explained that, after reviewing “the allegations in the Consolidated Complaint,” the Acting General Counsel had decided to exercise “his prosecutorial discretion” and dismiss the charges against the unions.

Employer’s appeals. UNFI filed with the Board both a request for special permission to appeal the RD Order and the appeal itself, arguing that Ohr had no authority to unilaterally dismiss the charges against the unions after UNFI had filed its motion for summary judgment and that the appointment of Ohr as Acting General Counsel was unlawful. UNFI also filed an appeal with the Acting General Counsel himself.

Denied by Board. The Board denied UNFI’s request for special permission to appeal the RD Order on May 11. It reasoned that UNFI’s request “is not properly before the Board” because “the Regional Director has the prosecutorial discretion to withdraw a complaint sua sponte at any time before the hearing” and “[h]is exercise of that discretion is not subject to Board or court review.” The Board explained that, even though UNFI had moved for summary judgment, the complaint had not “advanced so far into the adjudicatory process that a dismissal takes on the character of an adjudication.” The Board further stated that, because it did not have jurisdiction to review the RD Order, it would not consider UNFI’s arguments regarding the appointment of Acting General Counsel Ohr.

Appeal to Acting GC denied. The Acting GC also denied UNFI’s appeal, on June 22. He rejected UNFI’s argument that, by dismissing the charges against the unions, he “was adjudicating the merits of the case, rather than acting in his prosecutorial capacity.” Rather, he stated that he had “simply reviewed the evidence and determined that a violation had not occurred, and a complaint was not appropriate.”

Appeal to Fifth Circuit and 2023 decision. UNFI then petitioned the Fifth Circuit for review of the Board’s order denying it permission to appeal the RD Order, and the NLRB moved to dismiss the petition for lack of jurisdiction. A panel of the Fifth Circuit concluded that it had jurisdiction but otherwise agreed with NLRB, holding that Acting General Counsel Ohr’s designation was valid and that the Board permissibly determined that Ohr had discretion to withdraw the complaint against the unions. The appeals court thus denied both the NLRB’s motion to dismiss for lack of jurisdiction and UNFI’s petition for review. Judge Oldham dissented.

Loper Bright and remand. Then, in June 2024, the U.S. Supreme Court issued Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overruling Chevron. The Court shortly thereafter granted UNFI’s petition for a writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Loper Bright. The parties then filed letter briefs addressing the impact of Loper Bright, and the Fifth Circuit again heard oral argument.

Jurisdiction. First taking up the NLRB’s jurisdictional challenge once again, the appeals court found that, because this issue is unaffected by the overruling of Chevron, its analysis remained unchanged. The Board’s order at issue in the case, the appeals court found, qualified as “final” under the Supreme Court’s decision in Bennett v. Spear, 520 U.S. 154, 177-78 (1997), and the Fifth Circuit’s own decision in Shell Chemical. Cf. U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 599-600 (2016) (describing “the ‘pragmatic’ approach” that the Supreme Court has “long taken to finality” (citation omitted)). An agency, the appeals court noted, must carry a “heavy burden” to rebut the “strong presumption favoring judicial review of administrative action,” Salinas v. United States R.R. Ret. Bd., 592 U.S. 188, 197 (2021) (quoting Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015)), and the NLRB failed to carry that burden here. Accordingly, the court had jurisdiction over UNFI’s petition for review. See 29 U.S.C. § 160(f).

Dispositional challenge. Next, the Fifth Circuit rejected the employer’s dispositional challenge to the decision to withdraw the charges. Here, the court noted that “[T]he language, structure, and history of the NLRA, as amended, clearly differentiate between ‘prosecutorial’ determinations, to be made solely by the General Counsel and which are not subject to review under the [NLRA], and ‘adjudicatory’ decisions, to be made by the Board and which are subject to judicial review.” UNFI argued that, when it filed a motion for summary judgment against the unions, the decision of whether to withdraw the complaint against the unions became an adjudicatory decision to be made by the Board, subject to judicial review.

Unpersuaded, the appeals court found that, the text and history of the NLRA “uniformly confirm that the General Counsel holds authority over the issuance and prosecution of complaints,” and that “[t]his demonstrates both that the General Counsel is given decision-making authority regarding which matters to prosecute and that this prosecutorial authority does not end with the issuance of a complaint.” The Act also provides that the Board discharges its separate adjudicatory responsibility by conducting an evidentiary hearing and, thereafter, issuing findings of fact and an appropriate order. 29 U.S.C. §§ 160(a)-(c). “This statutory division of responsibilities,” the Fifth Circuit said, “supports the conclusion that the General Counsel retains the prosecutorial authority to dismiss a complaint prior to the scheduled hearing, when the Board is set to begin adjudication.”

Interpretive aid from the agency under Loper Bright. Second, the appeals court observed, since the creation of the General Counsel, the NLRB has consistently recognized the General Counsel’s “full and final authority... to dismiss charges.” Invoking Loper Bright, the court observed that, although such agency interpretations are not dispositive, “[c]ourts exercising independent judgment in determining the meaning of statutory provisions, consistent with the APA, may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes.” The Fifth Circuit did so here.

Improper removal argument. Finally, the court summarily rejected the employer’s argument that Acting General Counsel Ohr lacked authority to withdraw the complaint “because his designation was invalid.” The appeals court had recently rejected an identical argument in Exela Enterprise Solutions v. NLRB, 32 F.4th 436, 441 (5th Cir. 2022).

Dissent. In his dissent, Judge Oldham argued that, by restoring “the traditional understanding of the judicial function,” Loper Bright dramatically changed the law, and, despite the Supreme Court’s remand in light of that change, “It turns out that ‘further consideration’ was an empty formality. With little new analysis, the majority once again sides with the NLRB, recycling the same reasons it provided two years ago to justify deferring to the Board.” Oldham would stand by his 2023 dissenting position that the Board’s decision in the case “plainly violates 29 U.S.C. § 160.”

The case is No. 21-60532.

Judge: Higginson, S.

Attorneys: Philip Andrew Miscimarra (Morgan, Lewis & Bockius) for United Natural Foods, Inc. d/b/a United Natural Foods, Inc. and SuperValu, Inc. Steven Bieszczat for the NLRB.

Companies: United Natural Foods, Inc.; SuperValu, Inc.

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