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The 9th Circuit Backs Biden’s Power to Fire NLRB General Counsel

On Inauguration Day, January 2021, newly-sworn-in President Joe Biden fired Trump-appointed National Relations Board (“NLRB”) General Counsel Peter Robb. Peter Robb had less than ten-months left of his term. Biden is the first president to fire the General Counsel (“GC”), which stirred controversy in the legal community. More than two years later, the 9th Circuit has finally weighed in: President Biden had the power to fire the GC.

The central issue in this case is whether the GC is an employee at-will (an employee who can be fired at any time for any reason) or if the GC can only be fired for-cause (the GC must do a specific wrong-doing to be terminated).

Here is some background. The NLRB is an independent agency of the federal government within the Executive branch, responsible for enforcing U.S. labor law. The GC is appointed by the President and confirmed by the Senate to investigate and prosecute labor violations and bring them in front of the NLRB. For all intents and purposes, the GC is the chief prosecutor of the NLRB.

Biden is the first President to fire a GC in the midst of the GC’s term. However, were Biden’s actions illegal? The 9th-Circuit Court of Appeals, in a well-reasoned opinion, says no.

The Court opined that naysayers challenging Biden’s firing of the GC, confused tradition with legality. In their opinion, the 9th Circuit affirmed Biden’s actions by looking directly at the National Labor Relations Act (“NLRA”) (the law that created the NLRB). The NLRA, the 9th Circuit pointed out, specifically prohibited removing Board members from the NLRB. In contrast, the law is silent on the GC’s removal.

Additionally, the Court rejected even the notion that the historic patterns of GC removal is of any relevance. Nonetheless, the 9th Circuit said,“even if we assume that history matters here, past administrations have maintained that the General Counsel is removable at will.” As evidence, the Court cited to a memorandum written by current Chief Justice John Roberts, then an attorney in the White House Counsel’s Office, stating that the General Counsel of the Board is removable at will, and noted that the Eisenhower Administration took the same position in 1959.

The 9th Circuit’s ruling may encourage future administrations to immediately align Administrative Agencies with the President’s agenda. The question remains whether future administrations will adhere to tradition or take a page from the Biden administrations playbook. 

Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.