President Biden removes key determine at Nationwide Labor Relations Board — union leaders rejoiced
Amid a flurry of orders and actions on the first day, President Joe Biden’s administration showed the door to a senior employment agency attorney to guard against unfair labor practices for private sector workers.
The government reportedly fired the National Labor Relations Board’s general counsel, Peter Robb, after refusing to step down under Bloomberg Law.
But why should the presence of a lawyer be so important at a time when Biden is facing a growing COVID-19 pandemic, mass vaccination, strong economic headwinds, and the aftermath of a siege on the U.S. Capitol?
The answer, observers say, lies in the power of the General Counsel role and Biden’s focus on organized work. According to an expert, this could also mean new perspectives for university athletes, passengers, doctoral students and other people who are looking for organized occupational safety.
Union leaders welcomed the action. “Robb’s removal is the first step in giving workers a fair shot again,” said AFL-CIO President Richard Trumka in a statement.
Robb’s alleged firing is “the critical first step in restoring an NLRB that understands that the purpose of the National Labor Relations Act is to promote collective bargaining and prevent the abuse of corporate power,” said Chris Shelton, president of Communications Workers of America , in a statement.
But members of the business community took an opposite tone, saying Robb’s departure now contradicts longstanding practice of both Democratic and Republican governments and sets a precedent that could apply to other independent agencies, said Senior Vice President Glenn Spencer from the Department of Employment Policy of the US Chamber of Commerce. “It will also disrupt NLRB’s business and potentially face legal challenge. We hope, of course, that this decision will be reconsidered. “
Robb, who began a four-year term in November 2017, no longer served as general counsel as of 5 p.m. on Wednesday, a spokesman for the National Labor Relations Board confirmed. Deputy General Counsel Alice Stock was acting general counsel on Thursday, the spokesman said.
Later on Thursday, the spokesman said the White House had told the board that Stock would no longer be employed as deputy general counsel as of 5 p.m. Thursday
He referred further comments to the White House.
Stock said it rejects the new administration’s request to resign, according to a letter received from MarketWatch. Both she and Robb had planned to extend Robb’s term until the end of November 2021. “This would have been the normal, traditional, and legal course,” Stock wrote. But then came Robbs “abrupt and short distance,” she added.
Robb could not be reached for comment and a White House spokesman did not immediately respond to a request for comment.
Here’s why a change in staff could have cross-border implications – especially at a time when union membership continues to decline as the pandemic puts working conditions first.
Why does it matter who the general counsel is?
The National Labor Relations Board is an independent federal agency designed to provide sure protection against unfair labor practices by employers and trade unions. The agency also exists to ensure that workers can bargain collectively if they so choose.
There are five slots on the board and members decide on unfair labor practice cases after the administrative judges first hear them. One place is currently free. Biden selected Lauren McFerran, an Obama-era appointee, as chairman of the board on Wednesday.
But there is also the General Counsel, who is appointed by the President. That role “acts as a prosecutor” that pushes unfair work cases before the board of directors, explained Rebecca Givan, professor in Rutgers University’s School of Management and Labor Relations. The general counsel has “a lot of authority” over the allegations that are being submitted to the board for decision, Givan said.
The general counsel’s office also has a huge impact on the settlement process, and Givan said it could affect an even larger number of workers compared to certain cases.
In an “advisory protocol” from April 2019, Robb’s office said Uber drivers were independent contractors.
That conclusion, however, “effectively deprives Uber drivers of the NLRA’s rights to engage in collective action – such as organizing a union or bargaining – to improve their working conditions,” said researchers at the left-wing Economic Policy Institute.
Union critics note that Robb’s career includes working on the air traffic controllers’ strike of the early 1980s. Union air traffic controllers quit their jobs in 1981, and President Ronald Reagan fired most of them in the case of the watershed. Robb was working on unfair labor practices against the air traffic controllers after Reagan fired them, according to the AFL-CIO.
Can’t new administrations hire their own agents?
Yes, said Givan. “In most cases, the administration of a president allows the general counsel to serve the remainder of the term, but they have the option of dismissing a general counsel,” she said.
Republican Virginia Foxx, a Republican from North Carolina, scorched Biden for the sacking, saying his “constant demands for unity and civic discourse after his oath of office are already proving to be empty aspirations.”
The senior Republican on the Education and Labor Committee said the “outrageous ultimatum” to Robb was a reward for “Big Labor”. Foxx called on Biden to “withdraw this ill-advised and divisive action against a Senate-approved official and allow General Counsel Robb to complete the work for which he was appointed independently and free from political influence.”
What does that mean for the future?
Union membership has declined so far for decades that 10.3% of all working Americans were unionized in 2019.
When Biden ran for president, he clearly showed his support for organized labor. His campaign website read: “There is a war on organization, collective bargaining, unions and workers.”
On a practical level, Givan said Robb’s removal could be a green light for college athletes, ridesharing drivers and graduate students to band together and find board support.
One of Robb’s first acts was to withdraw guidelines that allowed college football players to be considered employees under the National Labor Relations Act. This came out of an analysis of attorneys from Jackson Lewis, a national law firm that represents management.
On a broader level, Givan said Robb’s dismissal “signals that the Biden government is serious about restoring labor rights and the right to be represented by a union.” For them, it shows that the new government “understands the real purpose of the National Labor Relations Act” and “staffs the agency with people who fulfill this purpose”.