Business lawyer Peter Robb, President Trump's pick as the next general counsel for the National Labor Relations Board, told a Senate panel Wednesday that he would uphold the "core values" of federal labor law. He said that would include the right to "refrain" from union activity. The board is the top federal labor law enforcement agency.
"I have always believed in the core values expressed in the [National Labor Relations] Act, which can be paraphrased as protecting the rights of employees to engage in union or other protected, concerted activity with respect to wages, hours and working conditions as well as the rights of employees to refrain from such activity. And once employees have freely chosen a labor organization to represent them, the act promotes collective bargaining. I believe these principles are the foundations of our successful economic system," Robb told the Senate Health, Education, Labor and Pensions Committee Wednesday.
Robb's statement indicates he would make it a priority for the board to ensure the rights of employees who dissent from their union's positions and that he would set a higher bar for unions to prove that they have majority support of workers before certifying an election. His position would be a sharp turn from the current general counsel, Richard Griffin, who strived to make union organizing easier.
Republican lawmakers said a change was badly needed. "Mr. Robb should help restore the board to the role of neutral umpire. While board partisanship did not start under the previous administration, it became far worse. When the board is too partisan, it creates instability in our nation's workplaces and creates confusion for employers, employees and unions," said Sen. Lamar Alexander, R-Tenn., chairman of the HELP committee.
While the title of general counsel implies an advisory role, at the NLRB the position is functionally the same as a chief executive. The agency is overseen by a five-member board, but the general counsel manages the agency's day-to-day activities and can initiate enforcement activities on his own. The board has about 1,600 employees, the vast majority of whom report directly to the general counsel.
Robb, a Vermont resident, has practiced labor law at the firm Downs Rachlin Martin since 1995 and has represented companies before the NLRB. Prior to that, he served as chief counsel to NLRB member Robert Hunter. Robb earned a bachelor of arts degree in economics from Georgetown University and a law degree from the University of Maryland School of Law.
Griffin was formerly a top lawyer with the International Union of Operating Engineers. He had previously been one of Obama's recess appointees to the board from 2012 to 2013 but his tenure was subsequently deemed unconstitutional by the Supreme Court's 2014 Noel Canning decision.
In November 2013, Griffin was appointed as the board's general counsel with five board members as part of a deal between Senate Republicans and the Obama administration. Griffin was instrumental in pushing the board in a more pro-union direction through inventive re-evaluations of the existing rules and procedures, such as expanding its joint employer doctrine, which made companies potentially liable in any case where they had "indirect control" over another company's workforce.
"This was the biggest attack on the opportunity for small businessmen and women to make their way into the middle class that anyone has seen in a long time – threatening to destroy the American Dream for owners of the nation's 780,000 franchise locations," Alexander said.
The House Education and the Workforce Committee marked up legislation Wednesday to roll back the labor board's joint employer rule.
The Trump administration has worked diligently to reverse the NLRB's direction. The Senate has already confirmed this year two Trump nominees, William Emanuel and Marvin Kaplan, to fill open seats on the board. The appointments give the NLRB a Republican majority for the first time since President George W. Bush's administration.
Business groups applauded the pick of Robb. "With the full board now in place and a new general counsel, the board is well-positioned to re-examine the overreach of decisions made during the previous administration, especially the expanded joint employer standard. We urge swift congressional confirmation of the general counsel post," said Cicely Simpson, executive vice president of the National Restaurant Association.