On his first day in office, President Joe Biden fired a key figure at the National Labor Relations Board (NLRB) in a move that’s being called a clear signal the agency is moving from a probusiness to a prounion stance.
Shortly after Biden was sworn in on January 20, NLRB General Counsel Peter Robb was informed he had until 5 p.m. to resign or be fired, according to news reports. Robb released his response to the resignation request by saying he would “decline to resign from my Senate-confirmed four-year term appointment . . . less than 10 months before the expiration of my term.”
Burton J. Fishman, an attorney with FortneyScott in Washington, D.C., says the new administration’s move is strong evidence it will pursue a prolabor agenda and that Biden’s pick for secretary of the U.S. Department of Labor—longtime union leader Marty Walsh—is in charge.
Fishman calls the move “a dramatic step,” and, if successful, he expects a series of memoranda will soon follow reversing Robb’s views on gig workers, unionization of graduate students, microunits, union election rules, and more.
“The optics are as significant as the actual achievements: This is a message to big labor that this administration is firmly on its side, despite the backlash it will cause, in and out of Congress,” Fishman says.
Kevin C. McCormick, an attorney with Whiteford, Taylor & Preston, L.L.P. in Baltimore, Maryland, calls the firing a “heavy-handed maneuver” and a clear signal “this is the beginning of not a bad dream but a nightmare for business.”
The general counsel is the “quarterback for the NLRB,” McCormick says, since it’s the person who decides what cases the Board considers and is involved in the regulatory direction the Board takes.
“It’s a sad day for employers because it makes it very clear they have to fasten their seatbelts,” McCormick says, and it shows the unions that their support of Biden was well-placed.
Mark I. Schickman of Schickman Law in Berkeley, California, says the NLRB is designed to be “one of the most political ‘independent’ major agencies in government,” since Board members’ staggered terms are calculated for turnover of most of the Board during a presidential term.
“So, there is no surprise that the Biden NLRB will reverse course on the Trump Board, just like that Board reversed course on the Obama Board,” Schickman says. “The Republicans will maintain a majority on the Board until August, so don’t expect policy changes until then. When the Democrats get control of the Board this summer, expect a raft of them.”
Garrison says it also may be a signal that the NLRB’s regional offices will return to more of an Obama-era approach in their work. The recourse employers have in challenging decisions from a regional office would be to take the matter to the Board, which still has a Republican majority, but cases often take time to percolate up to the Board and it will lose its Republican majority in August.
Fishman says it remains to be seen what will happen next. The firing is unprecedented, but the U.S. Supreme Court in Seila Law v. CFPB held that individual agency heads serve at the president’s pleasure, but it carved out a protected role for members of multiperson entities, such as the NLRB.
There may be a question of whether that Court precedent extends to general counsels who are in a lesser role and have executive authority, Fishman says, adding some observers believe the Supreme Court will extend the executive’s authority “unless purely political interests prevail.”
“Independence of independent agencies is in play,” Fishman says. “There will surely be a confirmation fight if Robb goes.”
Robb may challenge the president’s authority to fire the general counsel of an independent agency, and he “may even get support from ‘good government’ groups on the left,” Fishman says. “The important thing to note is that Biden was willing to stir this up—in the face of his unity message—to show his support for Walsh and unions.”
Schickman points out that, traditionally, the general counsel finishes the term after an administration change “to maintain some professional continuity, but organized labor had a major feud with Peter Robb, so it is a painless tip of the cap to them that this ‘message’ termination occurred.”
Schickman says it’s not clear if the president has the power to fire Robb, “but I don’t see the deed being reversed.”
McFerran New Chair
In addition to firing Robb, the new administration announced on January 20 that Lauren McFerran has been named chair of the five-member NLRB. Currently, she is the only Democrat on the Board, which has one vacancy. Other Board members are Republicans John F. Ring (who was chair before the McFerran appointment), Marvin E. Kaplan, and William J. Emanuel.
McFerran’s term expires on December 16, 2024, Ring’s term ends on December 16, 2022, Kaplan’s term ends August 27, 2025, and Emanuel’s term ends August 27, 2021.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.