Immediate Pro Labor Changes at NLRB

Within hours of taking the oath of office as President of the United States, Joe Biden fired Peter Robb, the Trump-appointed general counsel for the National Labor Relations Board, after Robb refused Biden's request for him to resign. Robb was notified by the Biden Administration that he had until 5 p.m. Wednesday January 20, 2021, to voluntarily resign or be fired. Robb refused to resign stating that his resignation would “permanently undermine” the work of the NLRB.

A number of unions, including the Service Employees International Union and Communications Workers of America, urged Biden to force Robb out of office immediately, so that the NLRB could begin to shift its focus to protecting workers without delay. President Biden's action sets a precedent and may adversely impact the independent nature of the NLRB. Despite political differences, previous administrations have allowed NLRB General Counsel to finish out their terms. A newly appointed NLRB General Counsel must be confirmed by the Senate, though the President may appoint an acting General Counsel in the short-term.

The Biden administration on Wednesday also replaced John Ring, the Republican chairman of the NLRB since 2018, with Democrat Lauren McFerran. Under Chairman Ring, numerous business friendly decisions were issued by the NLRB. Although Ring is no longer Chairman, he will remain on the NLRB through December 16, 2022.

Businesses should expect pro labor changes at the NLRB, including the issuance of General Counsel Guidance and changes in NLRB procedures, within weeks. However, it will take time for the new Administration to change existing regulations. Also, the earliest that there will be a Democrat appointed majority on the NLRB, absent an unplanned resignation or termination, is August 27, 2021. This means that many of the pro business decisions issued by the Trump Board will stand until they are reversed or overturned by subsequent decisions of a Democratic majority. These changes could take years.

What is clear from the aggressive Inauguration Day termination of Robb, is that pro labor changes at the NLRB are a top priority of the new administration. Businesses should expect significant changes in the future.