This month’s insight will be brief. If that’s not unusual enough, it’s also going to begin with a pitch. Then I’ll briefly reflect on President Biden’s unprecedented actions at the NLRB.
First the pitch. If you are reading this and aren’t a subscriber of LRI Rightnow you have no excuse. I’m so proud of the product our team has developed and continues to improve almost daily. It’s hands down the best source of up-to-the-minute labor relations data and research on earth. It costs nothing to subscribe.
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Joe Biden certainly hit the ground running on the labor front. I expected him to take action quickly and thought there was a chance he would make the unprecedented move to remove Peter Robb from the General Counsel’s position. What I didn’t expect was that he would make this move (plus terminating GC Robb’s Deputy Alice Stock) on days one and two of the new administration.
These moves leave no question that Biden intends to live up to his campaign promise of being the most pro-union President in history. These moves are some great red meat to his Big Labor supporters. But they may have the unintended consequence of slowing his labor agenda to a crawl.
When I say unprecedented, I mean literally the first time in the history of the National Labor Relations Act. Twenty-three minutes after Biden took the oath of office the Administration notified General Counsel Robb that he must resign or be terminated that evening. Robb refused to resign and was terminated. The next day the Administration moved Alice Stock, the Deputy General Counsel, into the General Counsel position and she received the same ultimatum. Acting GC Stock also refused to resign and was terminated.
Neither General Counsel Robb nor Ms. Stock received any explanation for why they were fired. This move is extremely troubling. The NLRB General Counsel position was created to be independent from outside influences. General Counsels are nominated by the President and subject to the advice, consent, and confirmation procedures of the Senate for set four-year terms.
Not only is this the first time a General Counsel (or Acting GC) has been terminated by the President, at least eight other Presidents have left the prior General Counsel (including both Presidents Trump and Obama) in place to serve out their full terms.
The Biden Administration’s actions are not just unprecedented, they are probably illegal. There have been numerous arguments floated to justify the President’s right to terminate the General Counsel. None of these are persuasive. The duties of the NLRB General Counsel are not executive level, policymaking duties. The duties of the NLRB General Counsel are essentially prosecutorial in nature. They do not fit into any of the Supreme Court cases that allow a President to terminate a sitting appointed position.
Not only that, but this week the Administration named a Regional Director from Chicago (the same Regional Director who thought college football players should be considered employees of their college) to the Acting General Counsel role. This creates a fact situation akin to the one in Southwest Ambulance where the Supreme Court ruled that an unusual appointment to the General Counsel’s role was unlawful. That decision resulted in hundreds of NLRB actions being ruled unlawful. It created a litigation and bureaucratic nightmare. Looks like we’re right back in that quagmire as well.
While these moves probably led to some high fives in the offices of Big Labor officials, none of this bodes well for the Administration’s labor agenda. They guarantee litigation, including quite possibly a fight over the Executive Branch’s authority that Democrats might prefer to avoid with the current makeup of the Supreme Court. It probably means a pitched battle over the Secretary of Labor’s nomination and any future NLRB nominees. And it puts every NLRB decision over the next several years at risk of being overturned over a completely avoidable (and foreseeable) unforced error.
One thing I never thought I’d say is that I miss 2020. But the way this year started I almost think I do. I know elections have consequences, and I fully expect the Administration to aggressively pursue a strong pro-labor agenda. They should do that, it’s what they promised. But this is a terrible way to begin an Administration that’s supposed to be dedicated to unity and coming together. President Biden can still do the right thing. Consider the legal quagmire he just created – and the likely long term negative impact on accomplishing his goals – and reinstate Mr. Robb and Ms. Stock for the brief few months remaining in their term.
