On his first day in office, President Joe Biden fired Peter Robb, the 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 had unfairly and illegally thrown him out of office 10 months before the end of his four-year term. In reality, Biden had ample legal authority for removing Robb, much of which is set forth in a legal memo penned by none other than Chief Justice John Roberts when he worked in the Reagan administration.
A new report by the nonpartisan US Government Accountability Office (GAO) shows why Biden was right to fire Robb—and to do so quickly. The GAO found that Robb was dismantling the agency from the inside. He reduced staff size, destroyed employee morale, and failed to spend the money appropriated by Congress. This all occurred while Robb was pursuing an anti-worker, pro-corporate agenda.
The GAO report found that the NLRB’s staffing fell 26 percent between fiscal year 2010 and fiscal year 2019, from 1,733 to 1,281. The personnel losses were disproportionately in the NLRB’s field offices, where unfair labor practice charges are investigated and union representation elections are held. The staffing problem was greatly exacerbated during Robb’s time in office. For the eight years preceding Robb, the agency filled 95 percent of vacancies in the headquarters and 73 percent in the field offices. But under Robb, staffing in the field dropped by 144 people, and only 13 people—a mere 9 percent—were hired to fill these vacancies. In 2018, Robb made no field hires. (Robb’s defenders argue that the reduction in staffing was justified by the reduction in the NLRB’s caseload, but the GAO found that staffing dropped more dramatically than the caseload.)
Not surprisingly, given this chronic and worsening understaffing, the morale of NLRB staff plummeted. The NLRB fell to dead last in employee satisfaction of 17 medium-sized government agencies, according to the federal Office of Personnel Management’s Federal Employee Viewpoint Survey. The percentage of regional NLRB staff reporting that they have a reasonable workload fell to just 35 percent in 2018–19, compared to 51 percent in 2015–17 (when the general counsel appointed by President Barack Obama was in office). The GAO reported that relationships with the NLRB’s staff unions were poor, and that staff felt Robb’s fixation on speeding up agency investigations of unfair labor practices was sacrificing quality.
Even more appalling is the fact that Robb refused to hire field staff while at the same time failing to spend all the money that Congress had given the NLRB to enforce workers’ rights. According to the GAO, fully 2 percent of the agency’s budget in fiscal year 2019 ($5.7 million) and 1 percent in FY 2018 ($3 million) went unspent. At the same time, the Trump administration, with Robb’s complicity, proposed to further slash the NLRB’s budget (a proposal that the Democratic Congress rejected). Robb tried to use these proposed cuts as grounds for not filling vacancies.
This hollowing out of the NLRB is especially scandalous because the agency enforces the National Labor Relations Act, under which workers have no independent right to pursue their rights. If the NLRB fails to act, or decides that workers do not have a claim, workers have no recourse. They cannot file a lawsuit over the violation of their rights or argue their case before an NLRB administrative law judge. (This is one of the many structural shortcomings in current labor law that the Protecting the Right to Organize Act pending in the Senate aims to fix).
Fortunately, this story has taken a happier turn. After firing Robb, Biden tapped Peter Sung Ohr, the highly respected director of the NLRB’s regional office in Chicago, as acting general counsel, and nominated longtime NLRB lawyer and former deputy general counsel Jennifer Abruzzo to replace Robb. Biden also designated Lauren McFerran, the lone Democrat currently on the NLRB, as chairman. To see the difference this new leadership makes, one need only look at the six-page response to the GAO report from Ohr and McFerran. They acknowledge the problems outlined by the GAO, accept the GAO’s findings and recommendations, and describe the many changes and corrections that are already underway under their leadership.
It will take time to restore the damage inflicted by Robb and the Trump NLRB, but with these early actions, the Biden administration is off to a strong start.