January 31, 2023

Volume XIII, Number 31


January 30, 2023

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President Biden Fires NLRB General Counsel and His Successor

On his first day in office, President Biden put the NLRB center stage by telling NLRB General Counsel Peter Robb to either resign or be fired. Bloomberg reports that the Biden administration sent a 12:23 p.m. Wednesday email to Robb, informing him he had until 5 p.m. to voluntarily resign or else be fired. Robb refused to resign, so the new president fired him. 

As the NLRB’s top official, the general counsel is responsible for the administration of the regional offices and the enforcement of the National Labor Relations Act. Robb said his removal would “permanently undermine” the work of the agency and could make it “subject to the political influence of the White House.” 

Robb, a Trump appointee, has been a pro-employer ally in his role, arguing for employer-friendly interpretations of federal labor law in front of the five-member NLRB. As general counsel, his position has significant authority to decide which cases the NLRB Regional Offices pursue and which they do not.

The Biden administration sent a similar notice on Thursday to Robb’s replacement, Assistant General Counsel Alice Stock, who had assumed the role of acting general counsel upon Robb’s firing. 

President Biden, the self-described “strongest labor president you have ever had” will have to wait until at least August 2021 until he can gain a pro-union majority on the five-member NLRB. Meanwhile, replacing Robb has been a priority of big labor, including the AFL-CIO and SEIU. It remains to be seen whether Robb or Stock will challenge the firings, as there is an open legal question regarding whether a President has the power to remove the head of the independent NLRB. It has been accomplished only once, in 1950, when a general counsel willingly resigned at the request of incoming president Harry Truman.

In a related but less controversial move, Biden appointed the lone Democrat appointee on the Board, Lauren McFerran, to serve as chair. 

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 22

About this Author

Thomas Payne Labor and Employment Attorney Barnes Thornburg Law Firm Indianapolis

Thomas Payne is an associate in the Indianapolis office of Barnes & Thornburg, where he is a member of the Labor and Employment Department.

Prior to joining Barnes & Thornburg full time, Thomas served as a summer associate in the firm’s Indianapolis office. He also gained experience as a pro bono law clerk for the Indiana Office of the Attorney General and for the Honorable Lance Hamner of the Johnson County Superior Court.

With an eye toward becoming a lawyer, Thomas began his education at Purdue University,...