NLRB AND RULE-MAKING BREAKDOWN

Biden Fires Robb, Trump-Appointed NLRB General Counsel

On his first day in office—in fact within minutes of his inauguration—President Biden emailed Peter Robb, the Trump-appointed General Counsel of the NLRB, to ask him to resign.  When Robb refused, Biden fired him later that day.  (Alice Stock, another anti-union Trump appointee, then became Acting General Counsel.  Biden promptly asked for her resignation and, when Stock refused to resign, Biden fired her too.)

Although this was not the first time a President requested the resignation of the NLRB General Counsel, it was the first time a President fired a General Counsel.  Robb and conservatives were quick to cry foul, arguing among other things that the firing betrayed Biden’s calls for unity, was illegal, or, in Robb’s words, “would set an unfortunate precedent.”

But Robb is an at-will employee not entitled to “just cause” protections from termination—protections which, by the way, Robb sought to undermine for unionized workers.  Moreover, the real “unfortunate precedent” here, which Biden aimed to stop, was a General Counsel whose main goal appeared to be undermining the NLRA—the very law the NLRB is tasked to protect and enforce.  Before serving as the NLRB’s top lawyer, Robb was a union-busting management attorney known for defending the Reagan Administration’s firing of striking air traffic controllers and attempts to decertify the Professional Air Traffic Controllers Organization following the 1981 strike.  While at the NLRB, Robb systematically sought to overturn longstanding worker protections and limit employees’ protected concerted activity.

If Biden had not fired Robb, Robb would have continued at the NLRB until his term ended in November 2021.

This is a major win for workers, and hugely important in restoring the NLRB’s mission.  The General Counsel of the NLRB is responsible for bringing cases to the Board in order to enforce and defend workers’ right to organize, form unions, and engage in other protected activity.  It is likewise supposed to enforce employers’ duty to recognize and bargain in good faith with the unions that employees select.  However, like many Trump appointees, Robb was more interested in doing the opposite of what the agency is legally obligated to do.  Robb sought out cases in attempt to roll back those basic rights, like employees’ right to communicate with each other by email about their conditions of employment, to return to work after a strike, and to be free of unlawful employer rules, as well as unions’ right to be recognized when selected by a majority of employees and to use inflatables like Scabby the Rat.  Robb also weakened the NLRB by drastically cutting staff and curtailing the authority of Regional Directors.  Robb knew that Unions are the strongest way for working people to exercise their voice in this country, and it was his clear goal to dismantle that.

The Acting General Counsel is now Peter Sung Ohr, a career employee of the NLRB.  Ohr will have the job until Biden appoints, and the Senate confirms, a new General Counsel.

On the eve of his election, Biden promised to be “the most pro-union President you’ve ever seen.”  He appears to be off to a good start.

By: Andrea Matsuoka and Xochitl Lopez | February 1, 2021

Legal Developments