Amid a flurry of first-day orders and actions, President Joe Biden’s administration showed the door to a top-ranking lawyer at a labor agency meant to guard against unfair labor practices for private-sector workers.
The administration allegedly fired the National Labor Relations Board’s general counsel, Peter Robb, reportedly after he refused to resign according to Bloomberg Law.
But why would one lawyer’s presence matter so much at a time when Biden is facing a surging COVID-19 pandemic, a mass vaccination effort, stiff 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 labor. It also could mean new prospects for college athletes, ride-share drivers, graduate students and others seeking organized labor protections, according to one expert.
Union leaders hailed the action. “Robb’s removal is the first step toward giving workers a fair shot again,” AFL-CIO President Richard Trumka said in a statement.
Robb’s alleged firing is “the critical first step toward restoring an NLRB that understands that the purpose of the National Labor Relations Act is to encourage collective bargaining and prevent the abuse of corporate power,” Communications Workers of America President Chris Shelton said in a statement.
But members of the business community struck an opposite tone, saying Robb’s departure now was “at odds with longstanding practice from both Democrat and Republican administrations and sets a concerning precedent that could apply to other independent agencies,” said Glenn Spencer, senior vice president of the U.S. Chamber of Commerce’s Employment Policy Division. “It also will be disruptive to the NLRB’s operations and may be subject to legal challenge. Certainly, we hope this decision is reconsidered.”
Robb, who started a four-year term in November 2017, was no longer the general counsel, as of 5 p.m. Wednesday, a National Labor Relations Board spokesman confirmed. Deputy General Counsel Alice Stock was the acting general counsel on Thursday, the spokesman said.
But later Thursday, the spokesman said the White House advised the board Stock was no longer employed at as the deputy general counsel, effective Thursday at 5 p.m.
He referred further comment to the White House.
Stock said she was declining the new administration’s request that she resign, according to a letter obtained by MarketWatch. Both she and Robb had planned to serve out Robb’s term to its November 2021 finish. “This would have been the normal, traditional and legal course,” Stock wrote. But then came Robb’s “abrupt and unceremonious removal,” she added.
Robb could not be reached for comment and a White House spokesperson didn’t immediately respond to a request for comment.
Here’s why one personnel move might have boarder significance — especially at a time when union membership keeps declining while the pandemic puts working conditions front and center.
Why does it matter who the general counsel is?
The National Labor Relations Board is an independent federal agency that’s meant as a safe guard against unfair labor practices from both employers and unions. The agency also exists to ensure workers can collectively bargain if that’s their choice.
There are five slots on the board and members decide unfair labor practice cases after administrative judges hear them first. One seat is currently vacant. Biden on Wednesday tapped Lauren McFerran, an Obama-era appointee, to chair the board.
But there’s also the general counsel, who is appointed by the president. This role “functions as a prosecutor,” pressing unfair labor cases before the board, explained Rebecca Givan, a professor at Rutgers University’s School of Management and Labor Relations. The general counsel has “a great deal of authority” on the allegations that come before the board for decision, Givan said.
The general counsel’s office also has a lot of sway in the rule-making process, and Givan said that may affect an even wider swathes of workers compared to particular cases.
In one April 2019 “advice memo,” Robb’s office said Uber drivers were independent contractors.
However, that conclusion “effectively robs Uber drivers of the rights under the NLRA to engage in collective action — such as organizing a union or collectively bargaining — to improve their working conditions,” according to researchers at the left-leaning Economic Policy Institute.
Union critics note Robb’s career includes work in the early 1980s air-traffic controller strike. Unionized air traffic controllers walked off the job in 1981, and President Ronald Reagan ended up firing most of them in the watershed case. Robb worked unfair labor-practice cases against the air traffic controllers after Reagan fired them, according to the AFL-CIO.
Can’t new administrations bring in their own appointees?
Yes, Givan said. “In most cases a president’s administration will allow the general counsel to serve the remainder of the term, but they do have ability to fire a general counsel,” she said.
Rep. Virginia Foxx, a Republican from North Carolina, scorched Biden for the dismissal, saying his “continuous calls for unity and civil discourse upon taking his oath of office are already proving to be empty aspirations.”
The ranking Republican in the Education and Labor Committee said the “outrageous ultimatum” to Robb was a reward to “Big Labor.” Foxx urged Biden to pull back “this ill-advised and divisive action against a Senate-confirmed official and allow General Counsel Robb to finish the job he was appointed to do independently and free from political influence.”
What does this mean for the future?
Union membership has been on a decades-long slide to the point that 10.3% of all working Americans were in a union in 2019.
When running for president, Biden was clear in his support for organized labor, with his campaign website saying “There’s a war on organizing, collective bargaining, unions, and workers.”
On a practical level, Givan said Robb’s removal could be a green light for college athletes, rideshare drivers, and graduate students to band together find support at the board.
One of Robb’s first acts was pulling back guidance that college football players could be considered employees under the National Labor Relations Act, according to a 2017 analysis from lawyers at Jackson Lewis, a national law firm representing management.
At a broader level, Givan said Robb’s removal “signals that the Biden administration is taking restoring workers’ right seriously and restoring the right to be represented by a union.” For her, it shows the new administration “understands the actual purpose of the National Labor Relations Act” and will staff the agency “with people that will fulfil that purpose.”