NLRB Rules on Legality of NLRB General Counsel Peter Robb’s Firing
On January 20, 2021, at 12:23 p.m.—23 minutes after he was sworn in—President Biden fired National Labor Relations Board (“NLRB”) General Counsel Peter Robb. No matter what you thought of Robb or his priorities, it is fair to say that he was one of the more controversial General Counsels in the NLRB’s history, which is saying something considering the agency’s priorities are known to flip-flop depending on the political party of the President who appoints its decisionmakers. Nevertheless, Robb’s firing before the end of his term was unprecedented in the history of the NLRB, causing some legal scholars to ask, “Can he do that?”
The National Labor Relations Act (“NLRA”) says, “There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years.” 29 U.S.C. § 153(d). Therefore, the argument goes, since Robb had been appointed by President Trump and confirmed by the Senate for a term of four years expiring on November 17, 2021, Robb was unlawfully terminated before the expiration of his U.S. Senate-confirmed four-year term, and there was no “vacancy” permitting President Biden to appoint a replacement before the expiration of Robb’s term.
On the other hand, others argued, the NLRA is silent on the President’s right to remove the General Counsel, and explicitly says that Board members “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” 29 U.S.C. 153(a). Therefore, the argument goes, since there are no express statutory requirements for the removal of the General Counsel like there are for Board members, the President’s right to remove the General Counsel without cause is implied.
The Board had the occasion to weigh in on the legality of Robb’s firing in Aakash, Inc., 371 NLRB No. 46 (Dec. 30, 2021). There, the employer argued that the complaint issued by Acting General Counsel Peter Sung Ohr on September 30, 2021, and thereafter pursued by General Counsel Jennifer Abruzzo following her Senate confirmation on July 21, 2021, was void because Robb’s firing was unlawful and Sung Ohr was not properly appointed. The Board unanimously rejected the employer’s argument, though for different reasons.
The Board’s three Democratic members—Lauren McFerran, Gwynne Wilcox, and David Prouty—relied on the Supreme Court’s recent decision in Collins v. Yellen, 141 S. Ct. 1761 (2021), which held that when a statute does not limit the President’s authority to remove an agency head, it is presumed that the agency head serves at the pleasure of the President; and this presumption is fortified where Congress includes limits on the President’s removal power in one section of the statute but omits them in another. The Board’s Republican members, Marvin Kaplan and John Ring, on the other hand, relied on the Board’s earlier decision in National Assn. of Broadcast Employees and Technicians, Local 51, 370 NLRB No. 114 (April 30, 2021), where a Republican majority of the Board declined to address the validity of Robb’s firing, calling it “a task for the federal courts.”
It is true that the final answer to the question of “Can he do that?” will rest with the federal courts. Presumably, the legality of Robb’s firing would not be subjected to the deferential review applied to other Board actions like bargaining unit determinations or unfair labor practice decisions and orders. Indeed, the employer in Aakash, Inc. has petitioned for review of the Board’s decision to the Ninth Circuit Court of Appeals. That case remains pending as of the writing of this article. It remains to be seen what the Ninth Circuit will say, or whether the Supreme Court will take up the issue. And it is certainly possible that we will not get an answer and the courts will find, as the Board suggested in Aakash, Inc., that the question is moot given the expiration of Robb’s term and the valid appointment and confirmation of General Counsel Abruzzo.
The more important issue, though, for practitioners is, “Should he have done that?” In other words, what does Robb’s firing mean for the NLRB going forward? Will the immediate termination of General Counsels appointed by a President of the other party become routine upon the election of a new President? Will Robb’s termination cause Presidents to nominate more moderate General Counsels so their premature removals cannot be justified as easily as Robb’s was? If Robb’s termination is upheld, will that give future Presidents the right to remove Board members before their term expires, or at least encourage them to consider doing so? Will Robb’s firing come to be viewed, in hindsight, as a “be careful what you wish for” moment? I have neither the time nor the space to answer these questions in this article, but I will say that, as lawyers, we should all consider these questions carefully before lending our support, or voicing our opposition, the next time someone calls for the premature removal of an NLRB General Counsel.