Should Biden Fire Trump's NLRB General Counsel?

Short answer: Yes. Longer answer: Yes.

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In perhaps the spiciest bit of gossip making its way across the labor beat, Bloomberg Law reported last Thursday that worker advocates and union officials are “making a case” for Joe Biden to fire Peter Robb, the Trump-appointed General Counsel of the National Labor Relations Board who is arguably the most anti-union individual to ever serve in the position. Robb has held the job since November 2017 and his term does not expire until November 2021.

The report does not specify whether the anti-Robb forces have made their appeals directly to Biden or even any of his surrogates yet. But there is clearly some sort of momentum behind the idea that requires exploring, for it carries significant implications for the labor movement and the NLRB under Biden’s first year in office.  

Can a President fire the General Counsel?

The text of the National Labor Relations Act certainly seems to suggest so. Whereas members of the five-person Board can only be removed under the statute “for neglect of duty or malfeasance in office, but for no other cause,” Section 3(d)—the provision of the NLRA that establishes the General Counsel office and its responsibilities—contains no such limiting language regarding removal.

The anti-Robb forces apparently are bolstering their argument with references to the recent Seila Law v. Consumer Financial Protection Bureau decision, in which the Supreme Court upheld Donald Trump’s firing of the CFPB’s Acting Director as lawful, but this case law is likely superfluous. Indeed, top Republican lawyers have long concluded that the president possesses the inherent authority to terminate the NLRB General Counsel. Behold this excerpt from a memo written by John Roberts when he was a 28-year-old associate White House Counsel under Ronald Reagan:

There is a clear answer to the second query posed by Mr. Hauser. In an opinion dated March 11, 1959, Malcolm Wilkey, then Assistant Attorney General for the Office of Legal Counsel, concluded that “the General Counsel of the Board is a purely Executive Officer and that the President has inherent constitutional power to remove him from office at pleasure under the rule of Myers v. United States, 272 U.S. 52.” We were advised in April of this year that the Department of Justice still adhered to the Wilkey opinion. Since the General Counsel serves at the pleasure of the President, it is unnecessary to consider Mr. Hauser’s third question, viz., whether the General Counsel’s conduct constitutes “cause” justifying Presidential dismissal for cause.   

This memo, written in the context of an inter-Board war between Chairman Donald Dotson, a Reagan appointee, and General Counsel William Lubbers, a Jimmy Carter holdover, appears definitive. The fact that it’s written by the current Chief Justice of the United States is icing on the cake. (I implore someone to pull the referenced Wilkey opinion, which I am unable to find on the OLC’s website.)

Has a President ever fired the General Counsel?

Yes. Sort of.

The first and last example of a president ever openly feuding with a General Counsel traces back to 1950. Robert Denham was the compromise pick put forward by Harry Truman to administer the newly passed Taft-Hartley Act, which had amended the NLRA to separate the NLRB’s prosecutorial and adjudicative functions. As depicted in James Gross’ essential Broken Promise: The Subversion of U.S. Labor Relations, Denham was a cantankerous racist who fell upwards into the General Counsel’s office from a lowly Trial Examiner role because he was one of the few conservatives working at the NLRB in the 1940s and the Taft-Hartley Congress demanded a nominee who would faithfully carry forward the new anti-union amendments.

The pick was disastrous from start to finish. Denham rebelled ideologically and culturally with the NLRB’s personnel, including the agency’s appellate attorneys, the nascent NLRB Union, and Chairman Paul Herzog himself. He endeavored to shrink the Labor Board’s influence by artificially restricting its jurisdiction and what companies it would prosecute. Most brazenly, he would frequently direct his lawyers to file briefs in circuit courts which contradicted the orders that Herzog’s panels would issue, claiming that Herzog and Co. were attempting to subvert the Taft-Hartley amendments in their decisions. The conflict between Denham and Herzog eventually spilled into the trade publications and national press, leading to an unsuccessful attempt by Congress to re-merge the NLRB’s Board and General Counsel offices.

By 1950 the situation was considered untenable, and Herzog demanded that Truman choose between him or Denham. Truman requested Denham’s resignation and received it the same day. However, Denham’s exit was widely reported in the media as a firing, which it for all intents and purposes was. The legality of the power play was never seriously doubted by Denham’s supporters and no hearings or litigation ever followed.  

Even if Biden can fire Robb, should he do it?

The Bloomberg Law report presents Robb’s firing as a murky maneuver containing equal amounts of risk and reward. I will proceed to list what I view as the pros and cons of the idea.

Pros

The General Counsel is the most powerful individual in the entire agency. While he or she cannot create or undo law that is on the books, the GC controls the actual enforcement mechanism of federal labor law by determining which unfair labor practice charges deserve prosecution. The importance of this function is made immediately apparent upon the ascension of a new General Counsel, whose first month usually portends the issuance of memos which rescind all of the previous GC’s articulations of the NLRA and plans for litigation. The first Robb memo was particularly broad and dismissive of his predecessor Richard Griffin’s tenure.

So even if Biden had won the election with 90 percent of the vote on an explicitly pro-union campaign, the Labor Board would still be operating under Robb’s agenda for the first ten months after the inauguration. This means no complaints would be issued on charges a Democratic appointee would likely find meritorious, delaying the project of reversing the Trump Board’s anti-union changes to the law well into 2022. It also means another year of Robb deliberately hollowing the agency out from within by refusing to hire staff in the shrinking field offices.

Robb doesn’t just keep the NLRB in a holding pattern; he actively works to weaken it. His anti-union assembly line will continue unabated. Trump’s three-to-one majority on the Labor Board—which, unlike Robb, all possess “just cause” protections from discharge—will remain intact until at least August 2021 when Member William Emanuel’s term expires, allowing seven months of uninterrupted funneling of precedent-altering cases for disposition. Worse, these efforts are likely to accelerate in the lame duck period. The only way to stop it is to remove Robb from office and elevate a more worker-friendly subordinate in the agency as Acting General Counsel.

Cons

Any potential boldness by a Democratic politician automatically invites concerns of blowback and retaliation. Here, the scenarios are not difficult to envision. Firing Robb would create a new “norm” in which the incumbent General Counsel position is replaced the day after inauguration, no matter when their Senate-confirmed term actually expires.  There will thus never be a scenario in which a Democratic president’s General Counsel survives at any sort of length into a Republican president’s first year in office, which was the case for Obama appointee Richard Griffin (who served over nine months following Trump’s inauguration).

For all the reasons that Robb’s continued stay in office is destructive for workers’ rights, Griffin’s holdover was beneficial. It prevented a less labor-sympathetic voice from taking the reins earlier and beginning Robb’s eventual assault on the agency. Given the speed with which Trump’s appointees have eviscerated the Obama Board’s legacy, those nine months could have protected several more decisions and doctrines from falling prey to the Trump buzzsaw.

An extreme example of this scenario occurred in the early 1980s. Jimmy Carter did not get a chance to appoint his own General Counsel until April 1980, over three years into his presidency and less than seven months until his defeat at re-election. Carter’s pick, William Lubbers, in turn served for almost the entirety of Reagan’s first term as president, routinely sparring with the Republican-majority Board members which wished to hasten a deregulatory agenda in federal labor law. (This was the conflict that Chief Justice Roberts was assigned to research.) Lubbers’ extended presence in office singlehandedly stalled the Reagan Revolution at the NLRB for several years.

Moreover, the General Counsel is not the only agency appointment that matters for the Labor Board’s ultimate functioning. Biden will eventually try to confirm Board Member nominees through a Senate that is likely to remain in Republican control. Any sort of compromise that emerges on this front certainly won’t be made easier if Biden begins his presidency by firing the Republican General Counsel, a move unparalleled in history. Biden’s administration may thus calculate that another ten months of Robb is worth multiple years of a fully-stocked Labor Board.

Two options, but only one choice.

Right off the bat, we should dismiss any concerns regarding the Senate situation. Democratic politicians should be long past the point where they unilaterally surrender their leverage in the hope of fair treatment from Mitch McConnell. Biden himself should be intimately familiar with this concept, as Obama’s spirited attempts at striking a “grand compromise” of sorts during his presidency never got off the ground. McConnell let the NLRB lose its quorum once before, and he very well may do so again regardless of what happens to Robb.

This, in my view, leaves only the strategic factor of holdover terms. If Biden were to spare Robb until November, his eventual replacement (assuming he or she is ever approved by the Senate) will continue to hold office well into 2024 or 2025—an important consideration if Republicans win back the White House next presidential cycle. Biden’s General Counsel would likely be spared just as Griffin was under Trump.

But that isn’t because Republicans are operating on a perfect tit-for-tat/prisoner’s dilemma system; it’s because they’re happy to oversee a dysfunctional Labor Board as much as they are a uniformly anti-union Labor Board. This is a game that McConnell has perfected. He doesn’t need the NLRB to be a top-to-bottom Republican outfit pumping out pro-management reforms; he just needs it to not be fully aligned behind a pro-collective bargaining national labor policy. Two of the three possible agency scenarios thus inherently favor conservatives, necessitating an aggressive posture from Democrats when caught amidst one of them. (Compare this to the CFPB situation, where its Director essentially acts unilaterally without the sort of quasi-judicial body that the NLRB’s General Counsel must direct cases to. Trump’s move against the holdover Acting Director thus made sense.)

While pragmatics matter less than power, I would also argue that it makes logical sense for the General Counsel’s tenure to line up with that of the nominating President’s. Whereas the five-member Board is an adjudicative body split between both political parties, the General Counsel is a lone actor which reflects the broader labor agenda of the executive branch. Spillover periods between presidencies are merely an accident of term lengths rather than the product of reasoned congressional input.

The labor movement is in a crisis. Private-sector union density stands at 6.2 percent and falling. Worker advocates cannot afford to waste a single moment that can be used to change the political terrain in their favor. And if Joe Biden wants to live up to his promise to be “the most pro-union president you’ve ever seen,” then he shouldn’t be able to stand having Peter Robb serve a second longer than necessary in his administration.