Jurisprudence

Biden Gave Trump’s Union Busters a Taste of Their Own Medicine

Biden speaks at a podium, standing in front of a portrait of Abraham Lincoln hanging in the State Dining Room
President Joe Biden at the White House on Thursday. Alex Wong/Getty Images

Twenty-three minutes after assuming the presidency, Joe Biden demanded the resignation of Peter Robb, the notoriously anti-union general counsel of the National Labor Relations Board appointed by Donald Trump. Robb refused to resign, so Biden fired him. Alice Stock, another anti-union Trump appointee, then assumed the role of acting general counsel—and Biden demanded her resignation the next day. Stock also refused to resign, so Biden fired her, too.

Both Robb and Stock, who relentlessly undermined unions’ ability to organize and bargain, are now complaining that Biden fired them without just cause. Stock went so far as to suggest that Robb’s firing was illegal. She is wrong. Robb and Stock were at-will employees of the executive. Like the countless American workers whom they prevented from unionizing, they had no guarantee against termination without just cause. Biden did not violate any laws. He simply gave the nation’s chief union busters a taste of their own medicine.

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Given his vocal support of unions on the campaign trail, it’s no surprise Biden acted quickly to clean house at the National Labor Relations Board, a federal agency tasked with enforcing labor law. The NLRB  is governed by a five-person board and a general counsel. Its general counsel is immensely powerful: He has authority to interpret federal labor laws and decide which unfair labor practice charges the agency should prosecute. Robb, a management-side lawyer and longtime union foe, used his powers to hobble unions’ ability to organize and bargain while destroying the agency from the inside. Over the last two years, Robb slashed the NLRB’s staff, hampering its ability to do its job, and attacked its own union. He championed the rights of managers to suppress free speech and refuse recognition of unions. Incredibly, Robb even prevented employers who support unions from helping their workers organize. During the pandemic, he has consistently ruled against employees’ ability to demand safer working conditions through collective action. The situation grew so dire that many unions stopped filing complaints with the NLRB for fear that Robb would exploit them to establish radical anti-labor precedents.

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Conservative commentators have complained that Robb’s ouster violated the cherished norm of presidents tolerating their predecessor’s NLRB appointees until their terms expire. But in reality, it was Robb who busted norms by subverting the agency. Federal law explicitly requires the NLRB to promote collective bargaining as the economic policy of the United States. Time and again, Robb brazenly defied this statutory mandate. Biden seeks to bring the agency back in line with the law, and Robb was clearly standing in the way.

Yet when Biden requested Robb’s resignation at 12:23 p.m. on Jan. 20, Robb insisted he should be allowed to carry out the 10 months remaining in his term. In a letter, he effectively accused the new president of firing him for partisan reasons without just cause. Robb charged Biden with violating his inaugural promise “to adhere to the rule of law” by denying him “the independence, free from White House interference, to enforce the laws of the United States.” He added that Biden had flouted “Congress’ intent” that the general counsel be “independent” from the executive branch. Republican lawmakers, including Senate Minority Leader Mitch McConnell, seized on Robb’s cause to accuse Biden of betraying his pledge to unify the country.

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Contrary to Robb’s claim, the NLRB general counsel is not, in fact, “independent.” The NLRB board is independent, as the president may only fire its members “for neglect of duty or malfeasance in office.” But Biden did not fire any members of the board—even though it is currently dominated by anti-labor Republicans. He fired the general counsel. As labor law expert Brandon Magner has pointed out, Chief Justice John Roberts confirmed this fact while serving as associate White House counsel. In a 1983 memo, Roberts explained the “clear” rule that the NLRB general counsel “serves at the pleasure of the President.” He elaborated that the president does not need “cause” to justify the general counsel’s removal.

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Several Republicans have sought to bolster Robb’s suggestion that Biden violated the spirit, if not the letter, of the National Labor Relations Act, which created the NLRB. Republican Rep. Virginia Foxx asserted that Robb’s termination “flouts” the law, which is simply false. And Alice Stock, whom Trump installed as deputy general counsel at the NLRB, complained about the “dubious legality” of Biden’s move. Indeed, Stock actually rejected Biden’s request for her resignation on the basis that she did not accept the legality of Robb’s firing. It is remarkable that the acting general counsel of the NLRB had such a profound misunderstanding of the laws she was tasked with enforcing. No matter: Stock, another management-side lawyer who helped Robb shred unions, served less than one full day as acting general counsel before Biden sacked her. Biden can now replace her with a pro-labor regional director at the NLRB or a current top official in the general counsel’s office.

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The rabidly anti-union National Right to Work Legal Defense Foundation whined about Robb’s firing on Thursday, insisting that it “was not anything actually he did as General Counsel.” It also urged Stock to resist Biden’s request for resignation. The foundation, along with Foxx, Stock, and other conservative activists, now apparently wishes that the NLRB general counsel had safeguards against removal for political reasons—something akin to just-cause termination, which Robb and Stock tried to stop unions from obtaining for their members. Both officials, however, were at-will employees. And so they experienced a fate that nonunionized Americans suffer every day: abrupt dismissal by a boss who doesn’t need a reason to kick his subordinates out on the street.

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