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Apr 09, 2024

Biden had power to fire U.S. labor board official, court rules

The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C., U.S., May 14, 2021. REUTERS/Andrew Kelly (Reuters) - President Joe Biden's firing of Peter

The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C., U.S., May 14, 2021. REUTERS/Andrew Kelly

(Reuters) - President Joe Biden's firing of Peter Robb, the Trump-era general counsel of the National Labor Relations Board, was legal, a U.S. appeals court said on Friday, rejecting claims that actions subsequently taken by the board were invalid.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals said federal labor law only shields the five members of the board from being removed at will and not the general counsel, who acts as a prosecutor.

Nursing home operator Aakash Inc had argued that Biden could not remove Robb without cause and that the general counsel's office lost the power to pursue a case against the company when Robb was illegally fired in 2021.

The 5th Circuit, the only other appeals court to consider the issue, rejected similar claims last April.

The 9th Circuit decision upheld a board ruling that said Aakash violated federal labor law when it refused to bargain with a unit of nurses.

An NLRB spokeswoman declined to comment. Lawyers for Aakash did not immediately respond to a request for comment.

The NLRB general counsel brings unfair labor practice complaints before the board and is also the agency's chief administrative official.

Biden fired Robb on his first day in office in 2021, marking the first time a president had removed an NLRB general counsel. The U.S. Senate that July confirmed Biden nominee and union lawyer Jennifer Abruzzo to the post.

Robb, whose term was set to expire in November 2021, had faced fierce criticism from unions and worker advocates for taking various positions that were seen as favoring the rights of businesses over those of employees and unions.

The National Labor Relations Act says board members may only be removed from office "for neglect of duty or malfeasance in office" but does not include similar language with respect to the general counsel.

The 9th Circuit on Friday said that distinction made clear that Robb could be fired at will and that Congress did not intend to limit the president's power to remove a general counsel.

The panel included Circuit Judges Susan Graber and Paul Watford, and Judge Evan Wallach of the Federal Circuit Court of Appeals, who sat by designation.

The case is NLRB v. Aakash Inc, 9th U.S. Circuit Court of Appeals, No. 22-70002.

For the NLRB: Heather Beard of the NLRB and Benjamin Shultz of the U.S. Department of Justice

For Aakash: Louis Cannon and Dylan Carp of Jackson Lewis

Read more:

NLRB general counsel removed after defying Biden's call to resign

NLRB punts to fed courts over whether GC Peter Robb's firing was unlawful

Court considers legality of Biden firing of labor board's top lawyer

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at [email protected].