Yes, Peter Robb's Firing Was (Probably) Legal
Robb's allies are crying foul over his termination, but he doesn't have a strong case in court.
As an early and predictable consequence of Joe Biden’s firing of Trump holdover NLRB General Counsel Peter Robb, Bloomberg Law has run an article that appears to throw some cold water on the otherwise jubilant reaction to Robb’s termination. Bloomberg quotes management lawyer Jerry Hunter (a former GC himself under George H.W. Bush) on the firing, who says any employer hit with a unfair labor practice complaint between now and the would-be end of Robb’s term should appeal the replacement GC’s ability to even authorize those complaints.
This, of course, raises the looming specter of Noel Canning and New Process Steel from the Obama era of the Labor Board. In Noel Canning, the Supreme Court held that multiple Board Members which Obama appointed under claimed recess authority were in fact unconstitutional. In New Process Steel, SCOTUS said that the two-member Board which was in place from early 2008 to mid-2010 did not constitute the necessary quorum for decisions under the NLRA. The two cases combined to invalidate some-one-thousand decisions issued by the Labor Board over the course of half-a-decade and generally threw the agency into administrative chaos.
(There was also the SW General case in which the Supreme Court held that Lafe Solomon unlawfully kept working as the Acting GC after Obama had nominated him for the full GC position, but this had a much smaller impact on Labor Board litigation. Plus, a presidential administration will not make that rather technical Vacancies Act mistake again.)
In assessing the strength of Robb’s possible litigation for unlawful termination, it should be noted that there is no controlling case out there for legal observers to rely upon, as such a firing has never happened. I wrote earlier about Truman’s sort-of firing of Robert Denham, but Denham resigned and never sued. Thus, it’s clear that any claim made by Robb would at least not be frivolous.
But that doesn’t mean it’s worthy of genuine concern by the Biden administration or his Labor Board, either. Let’s assess the historical, legislative, and legal evidence backing each party in court.
Evidence Supporting the President’s Authority to Fire the General Counsel
Section 3 of the NLRA is silent as to the right to remove the General Counsel. But Section 3 also states that Board Members shall be removed for “neglect of duty or malfeasance in office, but for no other cause.” The silence as to the GC’s job protections would seem to imply that the GC is removable for any reason.
A 123-year-old Supreme Court case states that four-year terms to a federal appointment, with no other explicit statutory job protections, are merely meant to limit the time a person can serve in that role without conferring any special privileges to the job before the four years have expired. In that case, a U.S. district attorney was fired by Grover Cleveland before his four-year term had expired. SCOTUS thus had no issue upholding the firing of a federal prosecutor in that instance.
The Supreme Court held last June in the Seila Law case that the President has unilateral authority to fire the CFPB Director and invalidated the statutory “for-cause” protections of that position because it was not a “quasi-judicial” or “quasi-legislative” role. (Neither is the NLRB GC.)
This isn’t necessarily evidence, but consistent with Seila Law, legal conservatives generally support expanding presidential power over the executive branch and generally rebuff attempts to isolate the powers and privileges of the administrative state. The 6-3 conservative SCOTUS majority may very well be willing to side with the “unitary executive theory” espoused by Justice Scalia in his famous Morrison v. Olson dissent in a case such as this.
Of the three different White House/OLC memos commissioned on this specific matter, all three have unequivocally argued that the President can fire the NLRB GC for any reason at all. The most recent such memo just happened to be written by John Roberts, the current Chief Justice, but the other memos (from 1954 and 1959) are just as emphatic.
Evidence Supporting the NLRB GC’s Right to Serve Out His Four-Year Term Without Removal
Section 3 of the NLRA is silent as to the right to remove the General Counsel. Therefore the President can’t do anything about it.
The President can almost certainly fire the NLRB General Counsel whenever he wants. Biden was within his rights to show Robb (and his Deputy GC, Alice Stock) the door.
More importantly, I have serious doubts that the Biden team would have made such a move against Robb if (1) they weren’t assured of its legality, and (2) they weren’t prepared to defend it all the way to SCOTUS. The Noel Canning and New Process Steel fiascos, while still sore spots for the Labor Board, were borne out of genuine acts of legal uncertainty by a presidential administration that was reacting to unprecedented levels of congressional obstruction to the agency. Those were defensive maneuvers, not offensive ones. That further buttresses my belief that Biden’s lawyers dotted their I’s and crossed their T’s before authorizing (let alone advising) such a move.