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Biden Fires NLRB General Counsel After He Refuses to Resign (3)

Jan. 20, 2021, 8:12 PM; Updated: Jan. 21, 2021, 2:42 AM

President Joe Biden fired Peter Robb, the Trump-appointed general counsel for the National Labor Relations Board, after Robb refused a request from the new administration to resign.

The White House notified Robb of his dismissal by letter—sent minutes after Biden was sworn in Wednesday—which specified he had until 5 p.m. to voluntarily resign or be fired, two people with knowledge of the correspondence said.

In a rebuke to the new chief executive, Robb said in a letter he wouldn’t voluntarily resign and that his removal would “permanently undermine” the work of the independent agency. A White House spokesperson Wednesday confirmed that Robb refused to resign and was fired.

“I respectfully decline to resign from my Senate-confirmed four-year term appointment as General Counsel of the NLRB less than 10 months before the expiration of my term,” the labor board’s top lawyer wrote.

The NLRB enforces private-sector workers’ rights to organize, and its general counsel has sweeping authority to determine which types of cases the agency does or doesn’t pursue. Robb, a former management-side attorney who helped Ronald Reagan defeat the air traffic controllers union, had pushed an aggressive, pro-business agenda at the labor board.

His term was slated to last until this coming November, but unions, including the Service Employees International Union and Communications Workers of America, had been urging Biden to break with precedent by forcing him out immediately, in order to begin reorienting the agency toward protecting workers.

Also on Wednesday, the Biden administration named Democratic NLRB member Lauren McFerran to head the board, taking over from member John Ring, the Republican chairman since 2018 who presided over major business-friendly decisions during the Trump administration.

McFerran, the NLRB’s sole Democrat, will still be outnumbered by Republicans, who hold a 3-1 majority on the five-member board. The fifth seat, reserved for a Democrat, is vacant.

‘Outrageous Ultimatum’

Robb appears to be the first NLRB general counsel to be forced out in more than half a century. The move angered Republicans and business attorneys who said it threatened the agency’s independent status and betrayed Biden’s call for unity in his inaugural address.

“This outrageous ultimatum that General Counsel Robb step down from his four-year Senate appointment less than ten months before the expiration of his term is unacceptable and flouts the National Labor Relations Act,” said Rep. Virginia Foxx (R-N.C.), the ranking member on the House Education and Labor Committee.

For unions, Robb’s removal offered reassurance that Biden would live up to his pledge to fully support labor. Union allies began calling for the general counsel’s ouster only days after the November election, pointing to the attorney’s record of siding with employers in key cases and his efforts to rein in the agency’s regional offices.

“He has been a toxic figure in the NLRB,” said Rep. Andy Levin (D-Mich.), vice chair of the House Education and Labor Committee. “He has worked to undermine its mission.”

A Democratic replacement, who would need Senate confirmation, would be able to begin reversing the prior administration’s changes to agency procedure, though Democrats will still face gridlock until Republicans lose the board majority in August.

Trump Refrained

An NLRB spokesperson declined to comment after the 5 p.m. Wednesday deadline.

Critics of the move noted that former President Donald Trump refrained from firing Richard Griffin, the NLRB general counsel during the Obama administration, allowing him to serve nine more months until the end of his term. Before that, Ronald Meisburg, a Republican appointed by former President George W. Bush, served for more than a year under Obama.

“The timing and the optics are stunning,” said Michael Lotito, a management-side attorney at Littler Mendelson. “At the same time the president is talking about unity, you’re firing this individual of an independent agency without cause because unions have asked you to do it. So from a labor management perspective this isn’t about unity. This is about bare-knuckle politics.”

Robb clashed with Democrats on Capitol Hill throughout his tenure, especially over the agency’s failure to spend the entire allocation of its annual budget and a short-lived plan to centralize control over field operations and shorten investigations.

Fire Power

The fact that Robb could be the first NLRB general counsel ever to be fired raises raises legal questions. In 1950, then-President Harry Truman asked the NLRB general counsel at the time, Robert Denham, to leave over the execution of the anti-union Taft-Hartley Act. Denham voluntarily resigned.

Supporters of Robb’s ouster point to the more recent Supreme Court decision in Seila Law v. Consumer Financial Protection Bureau, which affirmed the president’s authority to fire the head of the Consumer Financial Protection Bureau, an independent agency similar in structure to the NLRB.

Others question that theory.

“Is Peter going to challenge this? Go into his own pocket to bring an action to contest it? I don’t know,” Lotito said.

—With assistance from Ben Penn, Andrew Kreighbaum, and Robert Iafolla

(Updated with White House confirmation of firing in third paragraph and additional reporting throughout. )

To contact the reporters on this story: Josh Eidelson in Palo Alto at jeidelson@bloomberg.net and Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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