Legal Issues Surrounding Firing of NLRB General Counsel

Jan. 28, 2021, 9:00 AM

A curious confluence of ideological opposites is likely to sustain President Joe Biden’s inauguration week dismissal of Peter Robb, former National Labor Relations Board (NLRB) general counsel.

The administratively powerful GC position is hardly akin to the five-member NLRB itself, as the former is not quasi-judicial or legislative like the latter, which may be removed by the president only for cause. The GC, a prosecutor, is “independent” from the board—but not the president—ever since the 1947 Taft-Hartley amendments to the National Relations Act created the position, which has no analog in any other administrative agency.

True, the statute gives the GC the authority to speak in the name of the NLRB in some contexts, creating considerable public confusion and sometimes mischief in the process. But the NLRB itself performs quasi-judicial and quasi-legislative duties like the other disproportionately New Deal administrative agencies.

Difference Between the GC and Board Members

The general counsel is like a district attorney, where integrity is paramount but an arms-length distance from interested parties is less necessary than in the case of those who perform judge-like functions. Unlike the GC, it is the NLRB which possesses expertise, accounting for more than intermittent judicial deference—and a good GC anticipates what the NLRB will do.

This difference has been recognized by both major political parties, beginning with President Harry Truman, over whose veto Taft-Hartley was passed in 1947. In the immediate aftermath, the president was dissatisfied with GC Robert Denham’s handling of unfair labor practices aimed at unions under Taft-Hartley and sought his resignation—it was received.

The Eisenhower administration in 1954 explored the idea of removing President Truman’s general counsel (appointed in 1950), and Assistant Attorney General Lee Rankin wrote a formal opinion concluding that the general counsel could be removed.

The statutory reasoning? In the first place, the opinion noted that NLRB members may only be ousted for cause, and the statute is silent with regard to the GC. The second reason, Rankin said, was that the GC was like a prosecutor or “district attorney” and though Congress had given him a four-year term, fixed terms of office were not unusual in the federal government, a fixed-term postmaster dismissal was upheld in the century-old leading U.S. Supreme Court case.

This position was affirmed anew in the Ike era and, more recently, in a White House memorandum written by none other than now- Chief Justice John Roberts in 1983 during the Reagan administration. The views consistently expressed anticipated the 2020 Supreme Court ruling providing for the constitutional invalidation of dismissal-for-cause protection for the director of the Consumer Financial Protection Bureau, thus accepting a position on all fours with that applied to the NLRB general counsel by the Truman, Eisenhower and Reagan administrations.

In a 5-4 ruling, the Supreme Court in Seila Law v. CFPB concluded that a statute providing for cause dismissal protection for the CFPB director on the same grounds of “inefficiency, neglect of duty or malfeasance” pertaining to NLRB members was an unconstitutional abridgement of separation of powers, depriving the executive branch of its constitutional authority.

Perhaps grudgingly, the five-man majority relied, in part, on the fact that the director, in contrast to multi-member administrative boards had “no colleagues to persuade, and no boss or electorate looking over her shoulder” notwithstanding the responsibility to “dictate and enforce policy for a vital segment of the economy.”

Providing a rationale that clearly exposes the NLRB general counsel to dismissal, the court, speaking through Roberts, lamented that “some Presidents may not have any opportunity to shape its leadership and thereby influence its activities.”

In truth, the four-year term (co-extensive with the president) for the general counsel suggests that he or she is the president’s man or woman and thus could be dismissed like any other executive appointee. Contrarily, the staggered terms for the five NLRB members (before Taft-Hartley it was three, long sufficient for today’s diminishing caseload) provides a balance between presidential influence and independence.

The Unitary Executive

Robb’s firing, which is unrelated to adjudication, should be appropriately upheld. President Biden is not obliged, statutorily or constitutionally, to have a general counsel who restricts union organizing and bargaining activity, leaves Uber and other gig drivers unprotected, and imposes new burdens on labor. That is the good news.

The bad news is that the overriding impetus for Supreme Court expansion of presidential authority stems from the conservative Republican flavor of the past four decades, the unitary executive, a theory cherished religiously by most of the Supreme Court conservative majority. Their willingness to make war on the “administrative state” and the very concept of independent administrative agencies ferociously attacked by the GOP in Congress for the past quarter century, is the grand scheme.

The ability to dismiss prosecutors must be upheld—but the rule of law exercised by independent agencies must be preserved against this newly minted constitutional and erroneous theory which flies under the rubric of the unitary executive.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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William B.Gould IV is Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law School and served as chairman of the NLRB (1994-1998) and chairman of the California Agricultural Labor Relations Board (2014-2017). He is also the author of “Labored Relations: Law, Politics, and the NLRB—A Memoir.”

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