• Katelyn Oldham

President Biden's firing of former NLRB chief attorney upheld by 5th Circuit (4/22/22)

Updated: Apr 30


On April 22, 2022, the Fifth Circuit upheld President Biden's inauguration day termination of Peter Robb, after it had been challenged on the basis of a tenure argument. Board members of the National Labor Relations Board (NLRB) enjoy tenure rights preventing their removal before the end of their term. The Fifth Circuit held that the General Counsel position is not entitled to any term or tenure and may be removed. It further held that the ability to appoint and remove are essential functions of the Executive Branch.


On April 22, 2022, the Fifth Circuit upheld President Biden's inauguration day termination of Peter Robb, after it had been challenged on the basis of a tenure argument. Board members of the National Labor Relations Board (NLRB) enjoy tenure rights preventing their removal before the end of their term. The Fifth Circuit held that the General Counsel position is not entitled to any term or tenure and may be removed. It further held that the ability to appoint and remove are essential functions of the Executive Branch.


Robb was the much-maligned (by labor) General Counsel of the NLRB due to what has been viewed as an anti-worker approach to enforcement of the National Labor Relations Act (NLRA). He was appointed during the Trump administration.


Why does this matter? The NLRB is responsible for enforcing labor rights in the public sector. Having a strong advocate for workers at the head of the NLRB is essential to enforcement of rights to organize and to take collective action. The General Counsel of the NLRB is important for setting policy and enforcement goals. The current General Counsel, Jennifer Abruzzo, has brought a strong worker-centered return to the Board.


The Biden Administration's NLRB has been unabashedly pro-worker and has sought to enforce the NLRA to its fullest authority. Robb, a staunch management supporter who had crippled the enforcement of the NLRB by failing to replace staff and issuing legal memorandums weakening the interpretation of the Act, would have continued to be a huge impediment to workers' rights.


(pub. 4-25-22)




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