President Biden Terminates/Replaces NLRB General Counsel; Replaces EEOC Chair and Vice-Chair

By Lehr Middlebrooks Vreeland & Thompson, P.C.

January 26, 2021

President Biden in an unprecedented move terminated NLRB General Counsel Peter Robb on inauguration day, January 20. Biden also terminated Robb’s deputy, Alice B. Stock. The General Counsel serves a four-year term; Robb’s was due to expire during August 2021. In the over 70-year history since the creation of the General Counsel position, President Biden is the first to prohibit the General Counsel appointed by his predecessor from completing his term. Former General Counsel Robb may sue over the termination, claiming the President exceeded his authority with the termination decision.

The General Counsel is independent from the NLRB. The General Counsel is responsible for the supervision of NLRB regional offices in conducting elections for employees to decide whether to become or remain unionized and to investigate and prosecute unfair labor practice charges. In place of Robb, President Biden appointed Peter Sung Ohr as Acting General Counsel. If you recall the issue of whether Northwestern University football players were “employees” who could organize, Peter Ohr was the NLRB Regional Director in Chicago who concluded that scholarship athletes were “employees” as defined in the National Labor Relations Act. Ohr’s decision was over-ruled by the Board. AFL-CIO President Rich Trumka praised President Biden’s action, stating, “A union-busting lawyer by trade, Robb mounted an unrelenting attack for more than three years on workers right to organize and engage in collective bargaining. His actions sought to stymie the tens of millions of workers who say they would vote a union today....”

According to the Bureau of Labor Statistics, Union membership as of January 1, 2021 declined by 321,000 from 2019, to a total of 14.3 million. The union membership rate as a percentage of the total workforce increased by 0.5%, however, to 10.8% of all public and private sector jobs. The reason for the percentage increase is that total wage and salaried employment declined by close to 10 million, thus unions gained in the percentage of total jobs at a time when their membership declined. Furthermore, union membership is higher and more stable in the public sector than the private sector- 7.2 million (34.8%) compared to 7.1 million (6.3%).

On January 21, President Biden named Charlotte Burrows as EEOC Chair and Jocelyn Samuels as Vice-Chair. Both Burrows and Samuels are current EEOC Commissioners. Burrows replaces Janet Dhillon and Samuels replaces Keith Sonderling. Burrows and Samuels are Democrats; Dhillon and Sonderling are Republicans. By comparison, former President Trump did not nominate a Chair to the EEOC until the second half of his term. Of the five Commissioners, three are Republicans and two are Democrats. This balance will remain until July 1, 2022, when a Republican Commissioner’s term expires.