The U.S. Court of Appeals for the Fifth Circuit has ruled that President Biden acted within his authority on his first day in office when he fired Peter Robb, the Republican General Counsel (GC) of the National Labor Relations Board (NLRB or Board), even though Mr. Robb had 10 months remaining on his statutorily set term.
A unanimous three-judge panel of the appeals court in Exela Enterprise Solutions, Inc. v. NLRB, No. 21-60426 (5th Cir. April 22, 2022), found that the National Labor Relations Act (NLRA), which sets a fixed four-year term for the Board’s GC, does not explicitly protect the officeholder from removal without cause as it does for members of the Board, rejecting the argument that Robb could not be fired “without cause.” Accordingly, the court concluded that Biden’s removal of Robb, although unprecedented, was a legal exercise of the President’s Constitutional Executive Branch authority. If it stands, the court’s ruling will set a precedent for a newly elected president to fire a GC of the opposite party regardless of when that person’s term expires.
Members of the Center for Workplace Compliance (CWC) can read more here.