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Yesterday at noon Joseph Biden became President of the United States. Exactly twenty-three minutes later, his hiring manager emailed Peter Robb, General Counsel of the National Labor Relations Board, instructing him to resign or be fired by 5:00 p.m. Robb took option two, and the president embraced his threat.
The story was first reported by Bloomberg Law.
Peter Robb, despised by the unions, wielded tremendous power in the NLRB. As attorney general, the Trump appointee decided which cases should be brought before the Republican-dominated panel, setting a precedent for the work at will. In this capacity, he tried to weaken a case against McDonald’s to the detriment of its franchise employees, tried to core the agency as part of a “reorganization” plan and, as is known, tried to ban the inflatable union mascot “Scabby the Rat” during protests and called it “unlawful coercion”.
As the Economic Policy Institute put it, Trump officials on the NLRB board “have made a number of significant decisions that undermine the protection of workers under the National Labor Relations Act (NLRA / Act). In addition, the board of directors has put in place an unprecedented number of regulations to remove existing protection for workers. Finally, the General Counsel (GC) of the Trump NLRB refined guidelines that protect fewer workers through the NLRA, and advocated changes in the law that restrict workers’ rights. The Trump Board and GC have elevated corporate interests above those of working men and women and routinely betrayed the law they are responsible for administering and enforcing. “
Robb, who was appointed in 2017, had ten months left in his four-year tenure. And while the complaint in his denial letter that the GC’s early dismissal “is unprecedented in the creation of the National Labor Relations Act (NLRA) and the NLRB” is wrong – Harry Truman called for his NLRB GC to resign in 1950 – Robb is correct that it is not normal. Trump himself, an amazing standardizer, kept Robb’s predecessor Richard Griffin, one of Obama-appointed, through to his November 2017 term.
As labor lawyer Brandon Magner points out on his blog Labor Law Lite, the National Labor Relations Act provides that NLRB board members can only be removed “for breach of duty or abuse of office,” while the president is only empowered to appoint an employee in the event of one Vacancy in the position to act as GC. Hence, it is perfectly legal for Biden to fire Robb, just as it was legal for Trump to fire FBI Director James Comey. And Biden is unlikely to run over to Lester Holt to say he did it to kill a pending federal investigation. HM.
Rep. Virginia Foxx, senior member of the Education and Labor Committee, whatever she likes about the Biden team can “reward their friends in Big Labor on day one” and “call on President Biden to take this ill-advised and divisive move against you Repeal Senate – Confirmed Official, ”but in practice the only question is whether Biden wants to blow up this norm to get rid of a man who is actively working to undermine organized labor.
Which he seems to be doing. So Robb is out unless he wants to spend his own time and money in court, like Leandra English, the former head of the Consumer Financial Protection Bureau who sued to prevent Trump from taking her job in Mick Mulvaney’s portfolio record.
How did that work? Oh right
Biden fires the NLRB’s General Counsel after refusing to resign [Bloomberg Law]
The Robb Era: a knockdown but not a knockout for the NLRB [Labor Law Lite]
Elizabeth Dye lives in Baltimore, where she writes on law and politics.
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