President Biden moved so swiftly to fire the General Counsel of the National Labor Relations Board that he was still in the early stages of his inaugural celebrations on Jan. 20.
However, a federal court may end up finding that he moved too hastily and violated the law when he removed Peter Robb from office. Unlike other top lawyers at other federal agencies, the NLRB chief counsel serves a set four-year term under a law enacted by Congress. Robb’s term is not due to expire until this November.
According to the law, the counsel can only be fired “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Unlike other federal agencies, the NLRB GC plays a leading role in making policy. Most board policies are not laid out through rulemakings initiated by the board members and instead are made by deciding on individual cases brought to it by the NLRB’s regional directors, who are attorneys acting under the direction of the GC.
In addition to firing Robb, Biden also fired his second in command, who under law became acting General Counsel, and replaced her with one of the regional directors, Peter Sung Ohr, who lost no time in countermanding Robb’s policy declarations.
Since then, an employer already has urged the board to dismiss an unfair labor charge against it, asserting that the agency is unable to prosecute the matter in light of Robb’s firing.
That company pointed to the mess the board faced in 2011-13, when the then-Acting General Counsel Lafe Solomon conducted his duties while awaiting confirmation that never came. The Supreme Court ruled in 2017 that Solomon improperly served as NLRB GC during that time, casting a significant shadow over the hundreds of cases Solomon and the NLRB Regions handled.