President Biden Asks NLRB General Counsel to Resign

President Joe Biden began his election campaign in a union hall in Pittsburgh and pledged on the eve of the election to be “the most pro-union president you’ve even seen.” As immediate evidence of his intent to make good on that pledge, it is being reported that one of his first acts as president (the email taking this action was apparently sent at 12:23 p.m. on January 20, 2021) was to ask for the resignation of National Labor Relations Board General Counsel Peter Robb. The president apparently gave Robb until 5 p.m. on January 20, 2021, to resign or be fired.

The Senate confirmed Robb in 2017, and he is serving a term that does not expire until November 17, 2021. Despite having functioned in a fashion similar to all recent NLRB general counsels (GC)—including several recent labor minded GCs who took similar actions but obviously on the opposite philosophical side—Robb drew the ire of many in labor and the congressmen who support them. As a result, those same labor leaders have been calling for Biden to immediately oust Robb (either by resignation or termination).

Only one other NLRB GC has been asked to leave under similar circumstances and that was in 1950, when President Truman made that request of Robert Denham. Denham subsequently voluntarily resigned. More recently, Democrat and union attorney Richard F. Griffin Jr., who President Obama appointed, served 10 months under President Donald Trump. Ronald Meisburg, a Republican who President George W. Bush appointed, served for more than 1 year under President Obama.

Robb quickly declined this request, citing its unprecedented nature and the impact this action would have both on the independent nature of the Board’s GC and the “unfortunate precedent for labor relations.” It is not clear whether Robb remains in place or whether he has been terminated as a result of his refusal to resign—that will likely become clear in the next few days.

Updated on January 21, 2021

After receiving Peter Robb’s letter refusing to resign voluntarily, President Biden followed through on his threat to terminate the National Labor Relations Board general counsel nearly 11 months before his term was set to expire. This is the first time a new president has removed a sitting Board general counsel. Since this specific action has never been taken or challenged in the past, there is a difference of opinion as to whether this action is proper. We will have to wait to see if Robb or anyone else seeks to challenge President Biden’s decision.

In another day-one move, President Biden named lone Democrat Board member, Lauren McFerran, as chair, replacing Republican John Ring. President Biden is expected to nominate another Democrat to fill the fifth seat that is currently open. He is also likely to quickly nominate a replacement for Robb. With Democrats in control of the Senate, those nominations are likely to move relatively quickly.

Given this development, many may be asking what a Biden presidency with Democratic control of the Congress will mean for labor policy. Change, for sure, but how much, only time will tell. Suffice it to say, many of the most powerful leaders in the labor movement expect more than they got in 2008 with the failed Employee Free Choice Act and all expect President Biden to follow through on his promises. Check back on Ogletree Deakins’ Traditional Labor Relations blog for my forthcoming article summarizing a white paper written by Ogletree Deakins shareholder, and former NLRB member, Brian E. Hayes on what he sees on the horizon. Likewise, Ruthie L. Goodboe (who co-chairs the Traditional Labor Relations Practice Group) and I will discuss this topic on the next installment of her Third Thursdays podcast series, which will be available on January 21, 2021. Please stay tuned.