The Biden NLRB

Federal Judge Recognizes President’s Ability to Remove NLRB GC At Will

Fred Wang

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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