The unprecedented ouster of the National Labor Relations Board’s top lawyer will spark litigation over the Biden administration’s authority to remove him that has the potential to undermine his successor’s work, former agency attorneys and officials said.
Regardless of whether
“Any management lawyer worth their salt should raise as an affirmative defense that the complaint was unlawfully issued and has no legal viability,” said Jerry Hunter, a former Republican NLRB general counsel who represents employers for Bryan Cave Leighton Paisner.
Those expected legal challenges will put the NLRB on a path to the U.S. Supreme Court for the fourth time in recent years to defend appointments to the agency. It lost its three previous contests at the high court, which taken together invalidated years’ worth of board decisions—estimated at more than a thousand rulings.
Robb, a veteran management attorney tapped by the Trump administration, earned the ire of organized labor with his hard-charging, norm-bending stewardship of the NLRB general counsel’s office. Union leaders wanted him gone before his four-year term expires in November. Robb received a quit-or-be-fired ultimatum less than an hour after President
The White House axed Robb on Jan. 20 after he refused to resign by 5:00 p.m. Alice Stock, his top deputy, slid into the acting GC slot. Stock suffered the same fate one day later, leaving the post open for the time being.
But Biden’s power to remove Robb isn’t totally certain due to ambiguities in the National Labor Relations Act, a federal law that created the NLRB in 1935 and, following amendments in 1947, the general counsel position.
“The firing was probably appropriate, but it does put a question mark over future unfair labor practice proceedings,” said Jeffrey Hirsch, a former NLRB attorney who teaches workplace law at the University of North Carolina. “The only thing that’s clear is that it’s not clear.”
The NLRA set forth very clear conditions for firing board members. The president can remove members “for neglect of duty or malfeasance in office, but for no other cause,” according to the law.
In contrast, the section describing the general counsel says nothing about removal.
To decide whether Biden could legally terminate Robb, courts will have to weigh whether that statutory silence means Congress didn’t want restrictions on removal, intended the conditions for removing board members to apply to the general counsel, or wanted to prevent the GC from being removed, said Anne Lofaso, a labor law professor at West Virginia University.
Making the general counsel totally invulnerable to being fired seems unreasonable, so that leaves courts to consider who has removal power and what are the conditions for invoking it, said Lofaso, a former NLRB attorney.
“It’s a hard call,” she said.
Prior Opinions on Removal Power
The federal government has weighed in on the issue three previous times, each time saying that a president could sack an NLRB general counsel.
The Justice Department’s Office of Legal Counsel said in 1954 and again in 1959 that the rule from the Supreme Court’s 1926 ruling in Myers v. United States—which backed the president’s power to fire executive branch officials—allows for the removal of the NLRB’s top lawyer.
The issue arose again in 1983, when a Republican NLRB chairman wanted to strip authority from a Democratic general counsel. Reagan administration lawyer John Roberts—two decades before becoming the Supreme Court’s chief justice—opined in a memo that the president can fire GCs.
Those opinions, though not binding, “very much supports President Biden’s authority to fire Robb,” said William Gould, who served as NLRB chairman during the Clinton administration.
And while NLRB members serve five-year terms, thus overlapping presidential administrations, the four-year terms for general counsels indicate that Congress intended them to change with different presidents, said Gould, a professor at Stanford University.
Moreover, the Supreme Court’s June ruling in Seila Law v. Consumer Financial Protection Bureau signals the justices’ deference to presidential power, he said. That ruling affirmed that the president could fire the head of the CFPB, which is an independent agency with similarities to the NLRB.
Prior NLRB Losses
Despite some non-binding authority backing Biden’s power to fire Robb, serious questions remain about whether a court will decide he could, said Hunter, the former NLRB general counsel appointed by President George H.W. Bush.
“This could be another Noel Canning situation,” Hunter said, referring to one of the Supreme Court’s decisions that went against NLRB appointees.
In its 2014 ruling in NLRB v. Noel Canning, the high court unanimously found that the Obama administration’s 2012 appointments of three NLRB members violated the Constitution’s rules for installing officials when the Senate isn’t in session. The decision invalidated more than 700 reported and unreported decisions issued by the board.
The Supreme Court similarly voided hundreds of board rulings in its 2010 ruling in New Process Steel v. NLRB. On a 5-4 vote, the court held that the NLRB couldn’t decide cases with a two-member board.
More recently, the high court said the Federal Vacancies Reform Act didn’t allow an acting NLRB general counsel to continue serving once the president formally nominated him for the GC position.
But that 2017 decision in NLRB v. SW General wreaked much less havoc on the agency than Noel Canning or New Process Steel, since it only applied to unfair labor practice cases in which parties previously raised an objection to the acting general counsel’s authority to authorize complaints.