New Right-Wing NLRB General Counsel Threatens to Reverse Labor Gains

Mark Gruenberg

Mark Gruenberg Editor, Press Associates Union News

Discrimination against union workers during bargaining. Holding joint employers – a corporate headquarters and its local franchise-holders – responsible for obeying, or breaking, labor law. Using company e-mail systems to announce union meetings.

These National Labor Relations Board decisions, and more, are under threat, according to a memo from the agency’s new general counsel, Peter Robb. In so many words, he wants to stop or reverse all pro-worker board rulings of the last eight years.

Robb, nominated by GOP President Donald Trump, took over the agency’s top enforce-ment post on Nov. 17. He succeeded Richard Griffin, the former general counsel who, before that, had been the lead counsel for the Operating Engineers. Griffin’s term ended Nov. 1.

By contrast, Robb, a management-side labor lawyer from Vermont, was the young attorney in the Federal Labor Relations Authority who, 36 years ago, drew up the memo justifying GOP President Ronald Reagan’s firing of the Air Traffic Controllers.

Robb’s position is important: The NLRB General Counsel is its top day-to-day manager and the decision-maker on what cases to pursue before the full board or in the courts.

No sooner did he enter the GC’s office than Robb sent out a memo to all NLRB regional directors on Dec. 1, freezing enforcement actions and indicating he wants to roll back dozens of NLRB pro-worker rulings handed down in the last eight years, when Democratic President Barack Obama had named a board majority.

Robb also said any new initiatives will come to a screeching halt.

“Cases should be processed and complaints issued according to existing law. No new theories will be presented on cases that have been fully briefed to the board, to avoid further delay,” his memo said. And “the general counsel will not offer new views” on NLRB’s court cases, unless the board or the courts order him to do so.

But the heart of the memo is Robb’s order that cases “involving significant legal issues” should be sent to the board’s advice division in advance – including cases during the last eight years where “the board overruled precedents and involved one or more dissents.”  The implication is Robb wants to reverse those pro-worker rulings.

That covers virtually all the key cases the labor board, which governs worker-boss relations in most private industry, decided. That’s because, by law, no political party can have more than three of the five NLRB members, and the minority two. So 3-2 votes on notable issues, with dissents, are common.

And then Robb listed some of those cases, in groups, that he wants to override, or, as he put it, “provide alternative analysis” to the board’s five members. One case he wants to override lets union members use employers’ e-mail to post meeting notices, rather than restricting them to bulletin boards, for example. Another lets union reps have a wider range of employer discipline to tackle when standing up for workers who invite them into the meetings with the boss.

And while the National Labor Relations Act legalizes workers joining together – in unions or otherwise – for “mutual aid and protection,” Robb’s memo says that shouldn’t apply where only one worker is involved. The 2014 Fresh & Easy Neighborhood Market case extended the law to a sole woman worker, who was subject to sexual harassment on the job.

And a big one is the board’s “joint employer” ruling, which Griffin favored, holding the big franchisor, such as McDonald’s headquarters, equally liable with the local franchisee for following or breaking labor law in relations with their workers.

Griffin made the practical point that the franchising firm’s headquarters governs virtually all aspects of labor relations for its local affiliates, from what uniforms workers wear to what prices they can charge – and what labor laws to obey, or not.

Robb did not forecast what impact his memo and directions to the board’s regions would have on the quantity of cases the NLRB handles, or on any change in justice, other than to say he would review everything. The AFL-CIO’s general counsel’s office, which includes former NLRB General Counsel and Board Member Craig Becker, was unable to return a call to discuss Robb’s memo.


Posted In: Allied Approaches

Union Matters

Freight can’t wait

From the USW

From tumbledown bridges to decrepit roads and failing water systems, crumbling infrastructure undermines America’s safety and prosperity. In coming weeks, Union Matters will delve into this neglect and the urgent need for a rebuilding campaign that creates jobs, fuels economic growth and revitalizes communities.

A freight train hauling lumber and nylon manufacturing chemicals derailed, caught fire and caused a 108-year-old bridge to collapse in Tempe, Ariz., this week, in the second accident on the same bridge within a month.

The bridge was damaged after the first incident, according to Union Pacific railroad that owns the rail bridge, and re-opened two days later. 

The official cause of the derailments is still under investigation, but it remains clear that the failure to modernize and maintain America’s railroad infrastructure is dangerous. 

In 2019, 499 trains that derailed were found to have defective or broken track, roadbed or structures, according to the Federal Railroad Administration’s database of safety analysis.

While railroad workers’ unions have called for increased safety improvements, rail companies have also used technology and automation as an excuse to downsize their work forces.

For example, rail companies have implemented a cost-saving measure known as Precision Scheduled Railroading (PSR), which has resulted in mass layoffs and shoddy safety protocols. 

Though privately-owned railroads have spent significantly to upgrade large, Class I trains, regional Class II trains and local, short-line Class III trains that carry important goods for farmers and businesses still rely on state and local funds for improvements. 

But cash-strapped states struggle to adequately inspect new technologies and fund safety improvements, and repairing or replacing the aging track and rail bridges will require significant public investment.

A true infrastructure commitment will not only strengthen the country’s railroad networks and increase U.S. global economic competitiveness. It will also create millions of family-sustaining jobs needed to inspect, repair and manufacture new parts for mass transit systems, all while helping to prevent future disasters.

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There is Dignity in All Work

There is Dignity in All Work