
Fred Wang is a student at Harvard Law School.
Hours into his administration, President Biden fired the National Labor Relation Board’s (NLRB) Trump-era general counsel (GC), Peter Robb. Upon Robb’s termination, many Republicans clamored that Biden’s move was inappropriate, divisive, even illegal. Many observers—including myself—were skeptical of that latter argument. But over the past few months, corporations in pending litigation with the NLRB have tested it by filing challenges in ongoing cases.
Last week, a New Jersey federal judge shot it down. The case was Goonan v. Amerinox Processing, Inc., which involved an NLRB injunction sought against the metal processing company Amerinox to reinstate workers that it allegedly unlawfully fired. Amerinox argued that the NLRB’s acting GC lacked the authority to prosecute the matter because his predecessor, former GC Robb, was improperly removed from his office.
The district court disagreed. Its analysis of the removal issue was brief and focused exclusively on the “plain language” of the National Labor Relations Act (NLRA). On the district court’s read, the relevant statutory text (Sections 3(a) and 3(d) of the NLRA) distinguishes members of the Board from the General Counsel. Section 3(a), which governs the former, provides that the President may remove any member of the Board “for neglect of duty or malfeasance in office, but for no other cause.” That language, however, is conspicuously absent in Section 3(d), which describes the office of the GC. Indeed, Section 3(d) contains no language detailing the conditions under which the President may remove the GC. In other words, although Congress restricted the President’s ability to remove members of the Board at will, it “did not include the same provision for the General Counsel.” Accordingly, the district court concluded that the President could discharge the GC “without the process required for Board members.”
As others have noted, the particular facts of Goonan make it an unlikely case for definitively resolving the question of whether Robb’s firing was illegal. After all, as the district court later noted, the challenged injunction was brought by an NLRB regional director on behalf of the Board, not the GC. That being said, the decision affirms what many suspected in January: The legal argument against Robb’s firing is weak. And if the high Court’s most recent treatment of the President’s removal authority is any indication, it is unlikely that the Supreme Court—should the question be presented before it—will think otherwise.
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October 10
California bans algorithmic price-fixing; New York City Council passes pay transparency bills; and FEMA questions staff who signed a whistleblowing letter.
October 9
Equity and the Broadway League resume talks amid a looming strike; federal judge lets alcoholism ADA suit proceed; Philadelphia agrees to pay $40,000 to resolve a First Amendment retaliation case.
October 8
In today’s news and commentary, the Trump administration threatens no back pay for furloughed federal workers; the Second Circuit denies a request from the NFL for an en banc review in the Brian Flores case; and Governor Gavin Newsom signs an agreement to create a pathway for unionization for Uber and Lyft drivers.
October 7
The Supreme Court kicks off its latest term, granting and declining certiorari in several labor-related cases.
October 6
EEOC regains quorum; Second Circuit issues opinion on DEI causing hostile work environment.
October 5
In today’s news and commentary, HELP committee schedules a vote on Trump’s NLRB nominees, the 5th Circuit rejects Amazon’s request for en banc review, and TV production workers win their first union contract. After a nomination hearing on Wednesday, the Health, Education, Labor and Pensions Committee scheduled a committee vote on President Trump’s NLRB nominees […]