On his first day in office, President Biden took the unprecedented step of terminating NLRB General Counsel Peter Robb, without cause and before his statutory term expired. Biden named Peter Sung Ohr as Acting General Counsel. And Ohr issued an unfair labor practice complaint against Excela Enterprise Solutions. 

Excela rejoined that the complaint was invalid because Biden had no authority to remove and replace Robb. Not so, the Fifth Circuit said last week.

The Court rested its analysis on the “longstanding rule” that “[w]hen a statute does not limit the President’s power to remove an agency head, [courts] presume that the officer serves at the President’s pleasure.” The NLRA, the Court observed, states that the President may remove Board members only for cause. But the statute contains no tenure protections for the General Counsel.  

The Court declined to construe that silence as an invitation to graft a for-cause limitation onto the statute. Rather, declared the Court, “Congress knew how to give removal protections to the General Counsel. And Congress chose not to do so.” Thus, the Court concluded that Biden lawfully terminated Robb and that his successor’s unfair labor practice complaint against Excela was valid.

The Fifth Circuit’s decision only binds federal courts in member jurisdictions - Louisiana, Mississippi, and Texas. Other courts could take a different approach, which would leave it to the Supreme Court to resolve the issue.