GOP scrutiny intensifies on firing of NLRB top attorney

Republican backlash is intensifying over President Biden’s unexpected Inauguration Day firing of the top attorney at the National Labor Relations Board (NLRB), setting the stage for potential legal action in the near future.

Biden asked Trump appointee Peter Robb for his resignation on Jan. 20. When Robb refused to resign, he was fired later that day, months before his Senate-confirmed four-year term as NLRB general counsel was slated to end.

GOP lawmakers like Sen. Richard Burr (N.C.) and Rep. Virginia Foxx (N.C.) quickly seized on the controversial move, with some Republicans questioning whether any labor leaders exerted pressure to oust Robb.

“No president has ever taken such action in recent memory,” said Burr, the top Republican on the Senate Health, Education, Labor and Pensions Committee, at last week’s confirmation hearing for Marty Walsh, Biden’s nominee for Labor secretary.

Presidents traditionally let the NLRB general counsel finish out their term. Former President Trump kept on Obama appointee Richard Griffin, while George W. Bush appointee Ronald Meisburg stayed on into the Obama administration.

An NLRB general counsel hasn’t been asked to resign since 1950, when President Truman asked for the resignation of Robert Denham because of an anti-union bill. Denham resigned, meaning Robb was the first general counsel to be fired by a president since the role was created.

When asked why Robb was the exception, a Biden administration spokesperson said he was not carrying out the objectives of the NLRB.

Some labor experts said that while Biden deviated from tradition, Robb was not a traditional general counsel.

“The president does not routinely ask for the resignation of the general counsel of the NLRB in part because there once was a tradition of the position being nonpartisan. General counsel Robb is extremely partisan. He is probably the most aggressive anti-labor general counsel the agency has had in his history,” said Catherine Fisk, a professor of labor law at the University of California, Berkeley.

As general counsel, Robb worked toward restricting unions from using what are known as neutrality agreements, when an employer remains neutral about employees seeking to unionize.

Robb also took the position that Uber drivers are independent contractors and not employees, meaning they are not afforded certain protections under labor law.

“The damage that he was doing to workers’ rights under labor law is like nothing we’ve seen before,” said Lynn Rhinehart, a senior fellow at the left-leaning Economic Policy Institute.

Foxx, the top Republican on the House Education and Labor Committee, was one of the GOP lawmakers who quickly criticized Biden for removing Robb.

“The Biden administration appears to be rewarding their friends in Big Labor on day one through this inappropriate demand that NLRB General Counsel Robb resign immediately or be forcibly removed,” Foxx said in a statement at the time. 

The Service Employees International Union (SEIU) called on Biden in December to fire Robb, accusing him of being anti-union. Robb also was criticized by congressional Democrats for not spending the entire allocation of NLRB’s annual budget.

Days before Biden’s inauguration, SEIU President Mary Kay Henry tweeted, “Swift action is required. Robb must go.”

A spokesperson for the union said Robb’s dismissal shows that Biden will advocate for working people.

“Joe Biden campaigned as a champion for working people and removing Peter Robb as NLRB General Counsel is evidence that he was ready to start making good on that promise from day one. Peter Robb subverted the NLRB’s mission every day he served as General Counsel and working people held him to account for it,” the spokesperson said.

AFL-CIO President Richard Trumka said on Jan. 20 that removing Robb was the “first step” toward helping workers.

“In his first hours in office, President Joe Biden has taken immediate action to secure the rights and protect the well-being of America’s working families by removing Peter Robb as NLRB general counsel,” he said.

Robb told the White House, in a letter obtained by Bloomberg Law, that his firing would “permanently undermine” the agency’s work.

Foxx later teamed up with Rep. James Comer (Ky.), the top Republican on the House Oversight and Reform Committee, and Reps. Michael Cloud (R-Texas) and Tim Walberg (R-Mich.) to request more information from the White House on Robb’s removal. 

The committee had not received a reply yet to their Feb. 2 letter, according to a GOP Oversight spokesperson. Without a majority in either chamber, Republicans have little power to compel the administration to comply with their information requests.

Peter Ohr is now serving as acting general counsel at the NLRB.

Biden has not nominated a permanent replacement for Robb. His eventual pick will require Senate confirmation, with a confirmation hearing before the Health, Education, Labor and Pensions  Committee.

In the meantime, Robb’s dismissal opens the door to legal action because if Ohr issues a labor complaint, it could be jammed up in litigation over whether he has the authority to do so, experts said.

“President Biden has bought a good year of uncertainty and litigation. He’s appointed an acting general counsel; whatever he does is subject to challenge. If he brings a complaint and it leads to an investigation, the whole thing is subject to challenge because it’s not clear he has authority,” said Samuel Estreicher, labor and employment law professor at the New York University School of Law.

The general counsel decides whether there’s going to be a proceeding on an issue and if the board can take on a complaint.

“It will help the Republicans because it will delay the Democrats from doing anything on the board. For six, seven, eight months the board is not going to be able to do anything. The board cannot take any cases unless they are brought to the board by the general counsel. That’s why I say this is a Republican gift,” Estreicher said.

Some experts suggested Biden was on solid legal ground when he fired Robb. They cited a memo written by Supreme Court Chief Justice John Roberts, who at the time was President Reagan’s White House counsel, saying the president can fire general counsels at federal agencies.

Rhinehart is optimistic that the issue will eventually get resolved by the courts, in Biden’s favor.

“Given the quite clear authority that the president had to do what he did, that will get resolved relatively smoothly,” she said.

Still, Biden may have set a precedent for his Oval Office successors.

“I think it may very well become part of a new cycle and a new set of norms,” Fisk said, equating it to the attorney general.

“No one is surprised when a new president appoints a new attorney general of the United States. We expect that the attorney general’s priorities would reflect the president’s priorities because that’s what elections are about,” she said.