Biden Is Rebuilding the National Labor Relations Board

On his first day in office, President Joe Biden dismissed Peter Robb, Trump-appointed General Counsel of the National Labor Relations Board (NLRB), the agency responsible for interpreting and enforcing federal labor law.

Robb’s supporters protested that Biden wrongly and illegally kicked him out of office 10 months before the end of his four-year term. In reality, Biden had sufficient legal authority for removing Robb, much of which is recorded in a legal memo written by none other than Chief Justice John Roberts while serving in the Reagan administration.

A new report The impartial US Government Accountability Office (GAO) shows why Biden rightly fired Robb – and quickly. GAO found that Robb was dismantling the agency from the inside. He cut staff numbers, destroyed staff morale, and failed to spend the money provided by Congress. This all happened while Robb was pursuing an anti-worker pro-corporate agenda.

The GAO report found that NLRB’s workforce decreased 26 percent from fiscal year 2010 to fiscal year 2019, from 1,733 to 1,281. The loss of staff was disproportionately high in the NLRB field offices investigating charges of unfair labor practices and holding union representation elections. The staffing problem was greatly exacerbated during Robb’s tenure. In the eight years before Robb, the agency filled 95 percent of the vacancies in the headquarters and 73 percent in the field offices. However, under Robb, the local workforce fell by 144 people, and only 13 people – just 9 percent – were hired to fill these vacancies. Robb did not hire any on-site employees in 2018. (Robb’s defense attorneys argue that the downsizing was justified by the NLRB downsizing in the number of cases, but GAO found that the workforce declined more dramatically than the case number.)

With this chronic and deteriorating understaffing, it was not surprising that NLRB staff morale fell. According to the Federal Employee Viewpoint Survey of the Federal Office for Personnel Management, the NLRB last died in the employee satisfaction of 17 medium-sized government agencies. The percentage of regional NLRB employees who reported having a reasonable workload fell to just 35 percent in 2018-19, compared to 51 percent in 2015-17 (when President Barack Obama appointed General Counsel in the Was office). GAO reported that relations with the NLRB’s staff unions were poor and that staff believed Robb’s determination to expedite government investigations into unfair labor practices hurt quality.

Even more appalling is the fact that Robb refused to hire field workers while failing to spend all of the money Congress gave the NLRB to enforce workers’ rights. According to GAO, 2 percent of the agency’s budget ($ 5.7 million) was not spent in fiscal year 2019 and 1 percent ($ 3 million) in fiscal year 2018. At the same time, with Robb’s complicity, the Trump administration proposed further slashing the NLRB’s budget (a proposal that the Democratic Congress rejected). Robb tried to use these proposed cuts as reasons for not filling vacancies.

This hollowing out of the NLRB is particularly scandalous because the agency is enforcing the National Labor Relations Act, which gives workers no independent right to pursue their rights. If the NLRB does not act or decides that workers are not entitled, workers have no recourse. You cannot file a lawsuit for violation of your rights or discuss your case with an NLRB administrative judge. (This is one of the many structural flaws in current labor law that the Protection of the right to organize pending in the Senate aims to fix).

Fortunately, this story has taken a happier turn. Following Robb’s release, Biden appointed Peter Sung Ohr, the well-respected director of the NLRB’s Chicago Regional Office, as acting general counsel and appointed the NLRB’s longtime attorney and former deputy general counsel Jennifer Abruzzo To replace Robb. Biden also named Lauren McFerran, the only Democrat currently in the NLRB, as chair. To see the difference this new leadership is making, just look at the six-page response to the GAO report by Ohr and McFerran. They acknowledge the issues outlined by GAO, accept the findings and recommendations of GAO, and describe the many changes and corrections that have already been made under their leadership.

It will take time to restore the damage caused by Robb and the Trump NLRB, but the Biden administration has got off to a good start with these early measures.

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