Government

Republicans Rediscover 'Norms' As Biden Fires Labor Board General Counsel

Don't burn that bridge if you plan to walk across it.

By  
on

(Photo by Drew Angerer/Getty Images)

At noon yesterday, Joseph Biden became president of the United States. Exactly twenty-three minutes later, his personnel director sent an email to Peter Robb, the general counsel at the National Labor Relations Board, instructing him to resign by 5 p.m. or be fired. Robb chose option two, and the president made good on his threat.

The story was first reported by Bloomberg Law.

Peter Robb, who was despised by labor unions, wielded enormous power at the NLRB. Acting as chief prosecutor, the Trump appointee chose which cases to bring before the Republican-dominated board, effectively setting labor precedent at will. In that capacity, he sought to weaken a case against McDonald’s to the detriment of its franchise employees, attempted to gut the agency as part of a “reorganization” plan, and famously tried to ban the inflatable union mascot “Scabby the Rat” at protests, calling it “unlawfully coercive.”

As the Economic Policy Institute put it, Trump appointees on the NLRB board have “issued a series of significant decisions weakening worker protections under the National Labor Relations Act (NLRA/Act). Further, the board has engaged in an unprecedented number of rulemakings aimed at overturning existing worker protections. Finally, the Trump NLRB general counsel (GC) has advanced policies that leave fewer workers protected by the NLRA and has advocated for changes in the law that roll back workers’ rights. The Trump board and GC have elevated corporate interests above those of working men and women and have routinely betrayed the statute they are responsible for administering and enforcing.”

Robb, who was appointed in 2017, had ten months left in his four-year term. And while the complaint in his refusal letter that early dismissal of the GC is “unprecedented since the nascence of the National Labor Relation Act (NLRA) and the NLRB” is incorrect — Harry Truman demanded the resignation of his NLRB GC in 1950 — Robb is right that it’s not normal. Trump himself, a prodigious buster of norms, kept on Robb’s predecessor Richard Griffin, an Obama appointee, until his term expired in November of 2017.

But, as labor lawyer Brandon Magner points out in his blog Labor Law Lite, the National Labor Relations Act specifies that NLRB board members can only be removed “for neglect of duty or malfeasance in office,” while simply empowering the president to appoint an employee to act as GC in case of vacancy in the position. So it’s entirely legal for Biden to fire Robb, just as it was legal for Trump to fire FBI Director James Comey. And Biden’s unlikely to go running to Lester Holt to say that he did it to kill a pending federal investigation. AHEM.

Sponsored

Rep. Virginia Foxx, Ranking Member of the Education and Labor Committee can huff all she likes about the Biden team “rewarding their friends in Big Labor on day one” and “urge President Biden to rescind this ill-advised and divisive action against a Senate-confirmed official,” but as a practical matter, the only issue is whether Biden wants to blow up this norm to get rid of a guy who’s actively working to undermine organized labor.

Which apparently he does. So, Robb is out unless he wants to spend his own time and money duking it out in court like Leandra English, the former head of the Consumer Financial Protection Bureau who sued to stop Trump from adding her job to Mick Mulvaney’s portfolio.

How’d that one work out? Oh, right.

Biden Fires NLRB General Counsel After He Refuses to Resign [Bloomberg Law]
The Robb Era: A Knockdown But Not A Knockout For The NLRB [Labor Law Lite]

Sponsored

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Topics

, , ,