Biden First 24 Hours - Many Big Changes at the NLRB - Many Questions
When Biden said he would be the greatest President the unions have ever seen, he apparently meant it. Less than twenty-four hours after being sworn in, Biden has:
- removed John Ring as NLRB Chairman and appointed Lauren McFerran, the only Democratic NLRB member as the NLRB Chairperson;
- terminated the NLRBs General Counsel, Peter Robb effective immediately, despite the fact that his term was not up until November 2021; and
- appointed an Acting NLRB General Counsel, Alice Stock.
Board Chair and Composition
The removal of Ring as Chairperson and appointment of McFerran to this position was not surprising, although the timing was swifter than most expected. The Board will retain its Republican majority. NLRB Board members are appointed to five-year terms. The National Labor Relations Act provides that they cannot be terminated without evidence of “neglect of duty or malfeasance in office.” Currently, four of the five seats are filled:
- Gray Seat: Lauren McFerran Chair – Term Expires December 2024 - Democrat
- Smith Seat: William Emanuel, Term expires August 2021 – Republican
- Murdock Seat: John F. Ring, Term expires December 2022 - Republican
- Madden Seat: Marvin Kaplan Term expires August 2025 – Republican
- Carmody Seat: Vacant
Thus, assuming Biden appoints a Democrat to fill the Carmody Seat, which is virtually a guarantee, the Board’s pro-employer Republican majority will remain until sometime after August 2021, when Member Emanuel’s term expires and Biden’s next Democrat appointee is confirmed by the Senate.
Removal of NLRB General Counsel
As we reported yesterday, within minutes of the inauguration, Biden requested Robb’s resignation in an email. Biden indicated that if Robb did not resign, he would be terminated. Robb responded with a letter that he would not resign ten months before the expiration of his term. He indicated that it was improper and in violation of the very principles articulated at the inauguration ceremony. He stated, in part:
It was my understanding that the incoming administration intended to foster civility and unity in this country and in the governing of this country, promising to adhere to the rule of law and enabling its chief law enforcement officers the independence, free from White House interference, to enforce the laws of the United States. A presidential removal of the NLRB’s General Counsel prior to the expiration of his or her term violates these promises and principles. The prosecution of violations of the NLRA will now be subject to the political influence of the White House in violation of Congressional action to improve the function of the NLRB to achieve the NLRA’s mission to fairly resolve labor disputes in the United States.
The letter did little to sway the decision. At the end of the business day yesterday, Robb was fired.
Reactions to this move varied. Democrats and unions applauded the move, claiming the termination was necessary because Robb was working to undermine the mission of the NLRA to promote organizing and collective bargaining, and the agency needed to be reoriented in order to begin to protect workers and promote unionization. In fact, the Communications Workers Union, the SEIU and other unions had been calling for Biden to do this for the last month or two.
Republicans and business leaders decried the move, claiming it was unprecedented, may be illegal, and, in any case, was an immediate sign of betrayal from Biden’s call for unity made earlier in the day in his inauguration speech. Many critics of the move pointed to the fact that even President Trump refrained from firing Richard Griffin, the pro-union GC, who was appointed by Obama before his term ended.
As to the legality of the termination, it is not entirely clear whether the termination is legally supported. Interestingly, an opinion letter on the issue was drafted in the 1980s by current Chief Justice John Roberts at the request of Richard Hauser, then Deputy Counsel to Ronald Reagan. A handwritten copy of the request from Hauser to Justice Roberts is in the photo above this blog post. In his response, Roberts opined:
There is a clear answer to the second query posed by Mr. Hauser [whether the NLRB General Counsel may be removed by the President]. 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.
For a copy of Roberts’ complete memo and other related documents, click here.
Based on Roberts’ opinion, and the language of the NLRA, which does not offer any restriction on the President’s ability to remove the NLRB GC, but does offer restrictions on the ability of a President to remove an NLRB member, most commentators believe it would be an uphill battle for Robb to challenge the termination on legal grounds.
Appointment of Acting NLRB GC
Biden also did not waste any time ensuring that the NLRB has a replacement for Robb. Earlier today, less than 24 hours after the termination, Biden named Alice Stock as the Acting NLRB General Counsel. Because this “Acting” position is a temporary one, Senate confirmation is not necessary.
Stock is a former management attorney with Pryor Cashman in New York. She was appointed in 2019 as NLRB Deputy General Counsel by Peter Robb. It is unclear how quickly Biden will move to replace her with a more union oriented permanent replacement. However, if the last twenty-four hours are any indication, Ms. Stock may not want to get too comfortable in her new office. Robb’s permanent replacement once appointed, will have a four-year term and will need to be confirmed by the Senate. That is where things might really get interesting.
It may also be interesting if Robb does lodge some type of legal challenge to the termination in the form of a wrongful termination action. Even if Robb does not challenge the decision himself, employers who get hit with unfair labor practice complaints between now and November, may try to challenge those complaints on standing grounds, arguing that the termination of Peter Robb was illegal and therefore Stock or any replacement appointed following Stock but before November 2021, did not have the authority to act as General Counsel and issue the charge. A similar situation occurred in 2014, when the Supreme Court ruled in NLRB v. Noel Canning, that the Obama administration improperly made improper interim NLRB Board appointments and invalidated hundreds of Board decisions made by that Board.
We have all heard the phrase “actions speak louder than words” and the first moves by President Biden seem to indicate that he is going to put his long-time union loyalties above any desire for unity politics. We will continue to monitor these developments. In the interim, employers should be prepared for big changes in the way the National Labor Relations Act is going to be enforced and interpreted in the next four years and those changes are not going to wait until August.