Within hours of his inauguration, President Biden broke with tradition by firing the General Counsel of the National Labor Relations Board (NLRB) after he refused to resign. Some companies have claimed that this decision was improper and left the acting General Counsel named in his place without legal authority to act, setting up an anticipated wave of legal challenges.
In the first court decision to address the issue, a New Jersey federal judge in Goonan v. Amerinox Processing, Inc. suggested that there was no impediment to the President’s removal of former NLRB General Counsel Peter Robb:
Based on the plain language of [the National Labor Relations Act], the President may relieve the General Counsel of his or her duties without the process required for Board members . . . the Act itself provides for the designation of an Acting General Counsel when the General Counsel’s position becomes vacant, however that vacancy came to be.
The case arose when the NLRB sought an injunction against company unfair labor practices. The company argued that the NLRB was without authority because of the allegedly improper removal of the General Counsel, who, it claimed, has the sole authority to authorize the NLRB to pursue such actions. The court rejected that claim, noting that the National Labor Relations Act (NLRA) does not require a specific process for removal of the General Counsel. The court further held that the NLRA gives the authority to seek injunctive relief to the NLRB itself and that authority had been delegated to the Regional Director who sought the injunction, effectively sidestepping the question of the authority of the Acting General Counsel.
This is unlikely to be the last legal battle over the removal of former General Counsel Robb and the authority of his successor, but it does pose a setback to companies that are seeking to void legal action by the NLRB on the basis of the alleged lack of legal authority of the Acting General Counsel.