Labor Flexes Its Muscles

Joe Biden promised to make his the most By MAXFORD NELSEN Labor Policy Director 'labor-friendly' presidency in history. But after the kneecapping of NLRB general counsel Peter Robb, it's clear his union cronies got far more than just a seat at the table. Under Biden, they're literally calling the shots.

rguably the first major controversy of President Joe Biden’s administration was the unceremonious Inaug uration Day firing of Peter Robb, the general counsel of the National Labor Relations Board (NLRB) appointed by President Trump, 10 months before the expiration of his term. Internal NLRB emails recently obtained by the A

Freedom Foundation under the Freedom of Information Act provide additional insights into the unprecedented termination of the Board’s top enforcement official prior to the expiration of his term of office.

TheNational Labor Relations Act(NLRA) specifies that the NLRB general counsel, “...shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years.”

The statute does not envision or discuss the removal of the general counsel, and no previous president has replaced the NLRB general counsel prior to the expiration of their term.

However, at 12:23 p.m. on inauguration day, literally as President Bidenwas delivering remarks to the nation about his intent to foster renewed unity, his staffemailed Robba demand that he resign or face termination by 5 p.m.

Robb “respectfully decline(d)" andwas terminated. The following day, Robb’s deputy general counsel, Alice Stocks,received a similar ultimatumandwas terminatedfollowing her refusal to resign.

Days later, BidennamedPeter Ohr, the regional director of the NLRB’s Region 13 office in Chicago, as acting general counsel.

Since his appointment, Ohr hasmoved aggressivelyto rescind guidance memoranda and other policy positions adopted by his predecessor, much of which attempted to limit union coercion of employees.

Challenges to the legality of Robb’s firing andOhr’ssubsequent reversals of NLRB guidance have already beenraised in litigation, though it will likely take some time for federal courts to resolve the matter.

Jennifer Abruzzo’s role on the Biden transition team

Despite the suddenness of Robb’s termination, discussions about replacing Robb mid-term had been underway at least several months, with at least the Communications Workers of America (CWA)reportedlyadvocating for Robb’s removal shortly after Biden’s election.

Biden’s nominee to replace Robb, Jennifer Abruzzo, is both asenior attorney for the CWAand was a member of the Bidenagency review team(ART) charged with overseeing the Trump-Biden transition at the NLRB, potentially placing her in the position of having helped illegally terminate the person whose position she now seeks to fill.

The U.S. Senate Committee on Health, Labor, Education and Pensions (HELP) held ahearingon Abruzzo’s nomination on April 29. During the hearing, ranking minority member Sen. Richard Burr (R-NC) pressed Abruzzo about her role in Robb’s termination. Abruzzo attempted to deflect, statingshe was “asked to volunteer on the Department of Labor agency review team during the transition” and was “one member of about 25.”

Under questioning, she eventually appeared to acknowledge recommending,orat leastagreeing with a recommendation regarding,Robb’s termination to the incoming administration.

The website for the Biden transitionlisted23 members of the Department of Labor ART, including Abruzzo, though the website noted that the ART also had jurisdiction over eight other labor-related government agencies, including the NLRB.

However, according to a Dec. 4, 2020emailfrom BethTursell, who served as the NLRB’s designated point of contact for the Biden transition team, to Ohr, Biden’s NLRB ART consisted only of two people: Abruzzo and Seema Nanda.

This suggests that the 23 members of the Department of Labor ART were likely divvied up among the nine separate agencies in the “Department of Labor” ART, instead of all 23 engaging with all nine agencies as Abruzzo implied during her confirmation hearing.

Advance knowledge of Robb’s termination

On Dec. 28, 2020, San Francisco attorney David A. Rosenfeld of Weinberg, Roger & Rosenfeld — a private firm thatdescribesitself as “part of the labor movement” —emailed a brief letterto all NLRB regional directors, including Ohr. The letter read simply: “Dear Regional Directors:

Will you join me at Peter Robb’s office to help him move out on Jan. 20, 2021? Let me know. We can do it in person or remotely. He will be able to find work at some management law firm so he won’t have to seek any public assistance.”

Despite its sarcastic tone, the missivenonethelesssuggests Rosenfeld — who was neither part of the NLRB nor the Biden transition team — possessedforeknowledge ofRobb’s fate at least a month in advance.

Perhaps this advance notice happened to leak to Rosenfeld specifically, or perhaps the Biden transition team, including Abruzzo, promoted the incoming administration’s intention to terminate Robb broadly to unions and their allies well in advance.

Retired regional directors opposed Robb’s termination

On Jan.26, 2021,AllenBinstock, retired director of NLRB Region 8,emailed a notetoOhrcongratulating him on his appointment to acting general counsel and trashing Robb:

“Congratulations on your appointment as Acting GC. For my money, I’d love to see you in that position permanently. It is such sweet justice to see Robb kicked out on his ass and you replace him. As low as I’ve felt these past few months, when I heard the news about your interim appointment, I got up and did a happy dance! Most of the retired RDs were opposed to Biden axing Robb, but not me. I know it sets a new precedent which the others were averse to seeing. But this situation was different in my mind because, as we both know, Robb did what he could to hollow out the agency and ruin it. It was only because of the brave resistance of people like you that he did not do more damage. So I celebrated when Robb was shown the door. But now I’m elated that you are in charge of the GC’s office.”

Binstock’snote is extraordinary for several reasons. First, it acknowledges that many with experience in NLRB leadership opposed the precedent that terminating a general counsel mid-term would set.

But it is also a stunning acknowledgement of what some have labeled as the “deep state” — entrenched, career bureaucrats who work to thwart or “resist” the agenda of political appointees of the duly-elected American president.

Ohr and NLRB employees’ pro-union view of the agency’s mission

While none expressed themselves quite as colorfully asBinstock, communications betweenOhrand other NLRB employees show that manyviewtheir role as advancing a particular view of the agency’s mission,centered around promoting unionization,which they believe conflicted with Robb’s priorities and policies.

The day after his inauguration, the White House distributed anunlisted YouTube videofeaturing President Biden to federal employeesin whichhetold them, “You’re the ones running the show.”

Ohrforwarded the video to his Region 13 staff,describingthe message as “inspirational and reaffirming.” New York NLRB attorney Colleen Breslin forwarded the message to other NLRB officials, includingOhr,notinghow she was “looking forward to new and beautiful things.”

The Region 13 NLRB director, Mori Rubin,repliedthat she found the message “uplifting and inspiring.”

On Jan. 25, NLRB chairperson LaurenMcFerranemailedNLRB staff the announcement that President Biden had appointedOhras acting general counsel.Later in the day,Ohrfollowed up with anall-staff emailin which he described the NLRB as “my home” and “what defines me” and promised to “make significant differences” to “fully effectuate the Act.”

Emails between NLRB employees andOhrexplain a great deal about how they view the agency and their distaste fortheperspective and policiesofOhr’spredecessor.

n A senior NLRB attorney emailed congratulations to Ohr, describing his appointment as “such a REFRESHING change!!!” n In an email, an assistant general counsel wrote Ohr, “Good for you, good for us, good for the country!” n A deputy regional attorney in Region 9 wrote, “What you heard out in the field upon your appointment was a huge sigh of relief and hope from us.” n In an email to Ohr, a field examiner supervisor in

Chicago thanked him for a Jan. 26 meeting between him and NLRB employees in her office, writing that Ohr embodies “the true ethos of the Agency” and that his remarks produced “a spark of hope in my colleagues’ faces. People need to believe that their work matters and their voices will be heard, and you clearly communicated that message.” n A field attorney thanked Ohr for his “nuanced sensitivity to questions of privilege and access” and for “imbuing our work with more meaning, and for making so many feel seen.” n A regional attorney wrote that Ohr’s appointment represented “some justice.”

A field attorney described Ohr’s appointment as a “breath of fresh air.” n Another NLRB employee wrote that Ohr’s message gave her

“chills.” n Another wrote that they were

“...(s)o happy and excited for you and all the many good things that you and our Agency will be able to accomplish and contribute for the betterment of the working people and for the recovery of our country.” n In email replies to the various congratulatory notes, Ohr wrote that he intended to “make history” and “fulfill the mission of the

Act and bring back pride to the

Agency.”

None of the employees expressed an objection to Robb as a person or manager, but clearly they opposed his views, and those of the Trump administration, on policy. Republican officials generally attempt to balance the competing interests of unions, employees and businesses when managing the NLRB and applying the NLRA. However, to many career employees and former union officials who staff the NLRB, the purpose of the Act is to promote unionization and collective bargaining.

For many, as these emails show, this understanding is central to their personal identity and sense of meaning as NLRB employees. It’s also a view shared and repeated by President Biden himself.

In a two-minute video released by the White House during the campaign to unionize Amazon workers in Bessemer, Ala., Biden stated, “The National Labor Relations Act didn’t just say that unions are allowed to exist; it said that we should encourage unions.”

As Sean Higgins recently explained in Reason, this is a misreading both of the law’s history and text, but the view nevertheless appears to enjoy wide acceptance among NLRB staff. It also creates significant friction between Republican political appointees tasked with running the NLRB and the career staff who view their role not as implementing the policy agenda of the public as expressed through the elected executive, but serving the purported higher purpose of promoting unions, leading to the kinds of “resistance” movements among career federal bureaucrats that surfaced during the Trump administration. With former union officials like Abruzzo likely to be handed the reins at the NLRB soon, the next four years all but assure a continuation of the dramatically pro-union shift at the agency.

And as shown by Ohr’s quick moves to rescind Robb’s guidance memos and policies — which Glenn Taubman of the National Right to Work Legal Defense Foundation describes as “a record number of seismic policy shifts” — often this emphasis will come at the expense of employees’ freedom of choice.