Biden’s Firing of Former NLRB General Counsel Upheld

Allen Smith, J.D. By Allen Smith, J.D. February 1, 2023
The White House

​President Joe Biden had the authority to remove former National Labor Relations Board (NLRB) General Counsel Peter Robb on Inauguration Day because the president may remove the general counsel at any time and for any reason, the 9th U.S. Circuit Court of Appeals ruled on Jan. 27. We've gathered articles on the news from SHRM Online and other outlets.

Abruzzo Could Prosecute

In the case before the 9th Circuit, Aakash Inc. maintained that NLRB General Counsel Jennifer Abruzzo lacked the authority to prosecute an unfair labor practice charge against the company because the president could not remove Robb without cause during the four-year term to which he had been appointed.  

Past administrations have maintained that the general counsel was removable at will, the court noted. No exception to the president's removal power applied. The 9th Circuit said that it had reached the same conclusion as the only other appeals court to address this issue—the 5th Circuit.

(9th Circuit)

Precedent-Breaking Move

Before removing Robb from office, the Biden administration asked Robb to resign on Jan. 20, 2021, but Robb refused. In a letter to the White House, Robb called the request "unprecedented since the nascence of the National Labor Relations Act" and said his termination "would set an unfortunate precedent." Major unions had urged Biden to fire Robb and welcomed Robb's removal, hailing it as a timely departure from policies they deemed hostile to workers and unions. But Rep. Virginia Foxx, R-N.C., said the request for Robb's resignation was "inappropriate" and an "outrageous ultimatum."

(The Washington Post)

Robb Sought to Overturn NLRB Decisions

When he was the new general counsel for the NLRB, Robb signaled in a Dec. 1, 2017, memo an interest in overturning more than two dozen board decisions issued during President Barack Obama's administration. Robb sought in part to clarify that employers may lawfully terminate employees who refer to their supervisors on Facebook in outrageously obscene language. He also sought to restrict the use of employers' e-mail systems for work only.

(SHRM Online)

Abruzzo Called for Changes in Board Agenda

In Abruzzo's first memo as NLRB general counsel, she presented an agenda full of recommended changes for the board. Abruzzo listed 11 board case areas under the Trump board that she identified as doctrinal shifts away from previous board precedent.

(SHRM Online)

'Captive Audience' Meetings Targeted

In a subsequent memo, Abruzzo announced that she will ask the NLRB to find "captive audience" meetings unlawful. For more than 70 years, employers have had the right to convene such mandatory meetings with employees about their statutory labor rights, including the right to refrain from forming unions.

(SHRM Online)



Hire the best HR talent or advance your own career.

Are you a department of one?

Expand your toolbox with the tools and techniques needed to fix your organization’s unique needs.

Expand your toolbox with the tools and techniques needed to fix your organization’s unique needs.



HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.