President Biden’s Firing of NLRB General Counsel May Set Precedent

January 22, 2021

In an unprecedented move, President Biden fired National Labor Relations Board General Counsel Peter Robb hours after being sworn in and in response to pressure from union leadership.

Precedent-setting move:  Robb is the first NLRB General Counsel to be fired in the history of the independent agency—in 1950, in the middle of his second term, President Truman threatened to fire the Board General Counsel, who instead resigned.  In the Trump administration, as with others where there was a change of party in the White House, the General Counsel appointed by President Obama was allowed to finish his term.  Robb’s term was set to expire in November 2021, and his termination could set a new precedent for future presidents to remove appointees from previous administrations immediately after taking office.  Deputy General Counsel Alice Stock was initially named Acting General Counsel in place of Robb, but was subsequently terminated as well.  A replacement has yet to be named.

Signal of ambitious labor agenda:  While it will have an impact on the day-to-day operations of the agency and its regional offices, the move to fire Robb has little immediate effect on policy, as Republicans still hold a 3-1 majority on the Board until August 2021 (see separate story).  Most significantly, it is a clear gesture to the labor movement that helped get President Biden elected.  Unions have frequently criticized Robb and have openly called for his termination upon Biden’s victory.  Immediately firing Robb is also a clear signal that the Biden administration means business when it comes to transforming American labor law.

The unexpected move has questionable legality:  The legality of Robb’s firing is untested in the courts.  There have been a handful of Supreme Court cases that have ruled on the issue of whether a President may remove independent agency employees at will, but none have direct application to the unique circumstances of Robb’s position as NLRB General Counsel.  If the move is challenged, the outcome of the legal battle could set an important precedent for limits on the President’s removal power.