National Labor Relations Board Becomes Battleground That Could Define The Future Of Work

By Erik Sherman

Joseph R. Biden Jr.’s immediate agenda upon becoming president included delivering Peter B. Robb, general counsel of the National Labor Relations Board, with an ultimatum: Quit or you’ll be fired.

Robb, a former management-side attorney, was confirmed for the position by the Senate on November 8, 2017, according to an archived version of his biography on the board’s website. It was deleted before Biden had finished his first full day in office. Robb’s four-year term was slated to last until the fall. The move has generated political blowback and charges of hypocrisy in Biden’s call for unity and healing.

It’s a sign of what observers had been expecting — tensions between unions and big businesses — but they didn’t expect all-out war on Day One. The danger for both employers and workers is uncertainty as old rules quickly fall away, sides take turns grabbing for as much advantage as they can get and no one can know where anyone will stand next week.

Conservatives “shocked”

The ouster of Robb and his deputy, Alice B. Stock, sparked celebrations among unions. A statement from AFL-CIO President Richard Trumka called Robb a “union-busting lawyer by trade” who had, in his position on the board, “mounted an unrelenting attack for more than three years on workers’ right to organize and engage in collective bargaining.” Trumka called ousting Robb “the first step toward giving workers a fair shot again.”

Conservatives strongly condemned the change and the way it was undertaken. “This is the biggest attack in labor relations in my entire time practicing,” John Raudabaugh, Ave Maria School of Law professor of labor law and former board member appointed by George H.W. Bush, told Zenger News, describing himself as “shocked.”

“This is an independent, quasi-judicial agency,” said Raudabaugh. “I’m taken aback because the end of the current general counsel’s term is 9 or 10 months away. “This was a really unfortunate choice by whoever is in the White House policy group. They have declared war against labor relations in this country by doing it instantly once the president was inaugurated. The first big thing involved labor relations. And it’s obvious that he is owned and controlled by unions.”

Juscelino Colares, a professor of business law at the Case Western Reserve University School of Law, called it a “first.”

“You can’t have it both ways,” Colares said. “You can’t say that you want peace and harmony, you want the country to be unified again, while at the same time you’re doing things like this. Congress staggered the terms of these individuals to allow some degree off political independence.”

Partisan squabbling

Critics of both Robb and the (currently) mostly right-of-center National Labor Relations Board say they had virtually tossed legal precedent out the window in pursuit of political ends.

“What we saw for the NLRB and the FLRA, the individuals, the political appointees there were not fairly evaluating the law,” said Heidi Burakiewicz, a partner with the federal employment law firm Kalijarvi, Chuzi, Newman & Fitfch. Burakiewicz represents unions and employees and has practiced since the George W. Bush administration.

“They had a mission to crush unions, to crush workers,” she said. “There were cases where they were ignoring precedent. No valid interpretation of the law could support the outcomes in some of the decisions we were seeing.”

Ronald Miller, a senior writer and analyst at Wolters Kluwer Legal & Regulatory U.S., a publisher of specialized regulatory information, agrees with Burakiewicz’s conclusion.

“The NLRB has been really overturning a lot of precedents that have been established,” Miller said. “Some more recently and some maybe 30 years or older. This board will make changes in existing law even if neither of the parties have raised the issue.”

Although not a voting member of the board, Robb had significant influence.

“The general counsel is going to decide what cases are going to be pushed,” Miller said. “It’s up to the general counsel to actually file charges. It doesn’t give you control over the opinions of the board members, but it does give you control over what cases are going to be brought and how they’re going to be presented.”

Ping-pong politics

Recent history shows political and legal volleying by Republicans and Democrats. Biden also asked for the resignation of Kathy L. Kraninger, whom former President Donald J. Trump had appointed to lead Consumer Financial Protection Bureau.

Although Congress set up that agency with a single director who could be fired only for “inefficiency, neglect of duty, or malfeasance,” a Supreme Court decision in June 2020 affirmed that a sitting president could remove the appointee over policy differences.

Rhode Island Sen. Sheldon Whitehouse, a Democrat, said at the time that it showed “fringe legal theories” had moved “into mainstream conservative legal thought.”

The Biden administration and congressional Democrats have also publicly supported a move to pass a bill that union organizers call the PRO Act (“Protect the Right to Organize”), which would codify some far-reaching labor policies. Those include heavy restrictions on using independent contractors, an easier path for labor unions to support each others’ strikes, a ban on restricting employees from joining class actions and a virtual end to the concept of right-to-work state legislation.

But as politicians, unions and large corporate interests wrangle back and forth, regular businesses and employees may find themselves dazed, trying to keep up with the latest changes that make planning and even understanding individual rights difficult.

David Martosko contributed reporting.

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