From Joe Biden’s signing of an Executive Order throttling the Keystone XL Pipeline and eliminating 11,000 direct jobs, to Biden’s questionable firing of National Labor Relations Board (NRLB) General Counsel Peter Robb, it is clear that a war on work, and who controls it, will be part of what defines this new administration.
The National Right to Work Legal Defense Foundation recently filed a Freedom of Information Act request for correspondence related to the firing of NRLB General Counsel Robb. Since the office was established in 1947, a General Counsel has never been fired, even with changes in administrations. Robb only had 10 months left on his tenure.
The makeup of the NRLB is unique, and the general counsel, while appointed by the President and confirmed by the Senate, is supposed to be independent from the administration in terms of its Labor relations decision-making.
As Foley and Lardner LLP outlined in its blog:
“As most readers know, the NLRB is the federal government agency that regulates the bulk of private sector labor relations (shipping, railroads and airlines are handled by other agencies). As an “independent” agency, it is not directly controlled by the sitting president in the manner that executive branch cabinet-level agencies like the Department of Labor are. The NLRB has five members, appointed by the president and confirmed by the Senate. The five members essentially act as judge and jury and set the agency’s policies by hearing and issuing opinions in disputed cases. The other critical position at the NLRB is the General Counsel, whom you should think of as both the police (they supervise the regional offices where the investigations occur) and as the prosecution against parties initially found to have violated the act. The General Counsel has significant (and independent from the Board) influence on the country’s labor relations policy by directing the field offices, and issuing policy memos and enforcement guidance.”
Biden’s firing of Robb, and subsequently of his second in command Deputy General Counsel Alice Stock, was deemed by Robb, and many in the Labor world as “unprecedented”.
“Because Board member terms are staggered, an incumbent president cannot automatically replace Board members but must wait for their terms to expire. Also, the long-standing custom is that the sitting president’s political party names three seats and the minority party names two. Currently, the Board consists of three Republican members, one Democrat and one vacancy. The next opening occurs in August of this year. Thus, unless a current member quits or dies, newly elected President Biden will not be able to have a Democratic majority in place until at least the second half of the year. Because the Biden administration did not want to wait to put its priorities in place, it took the controversial and almost unprecedented move of firing sitting General Counsel Robb (the Trump appointee and former management-side labor attorney) and skirted the Senate confirmation process by immediately appointing Ohr as acting General Counsel.”
Biden’s appointment of Peter Sung Ohr to acting General Counsel is a clear sop to the powerful heads of Labor that the administration will play ball with their agenda. On February 4, Congress moved to reinstitute the Protecting the Right to Organize (PRO) Act, the sweeping labor legislation that guarantees unions can organize without employer consent, and kills right-to-work laws in individual states. The bill already has 195 cosponsors, including 2 Republicans. The enactment of this act is reportedly AFL-CIO’s top priority in 2021.
Ohr, a Democrat, has been a career NRLB employee since 1997. Ohr made his name at the Chicago Regional Office by championing the case that Northwestern scholarship athletes should have the right to unionize.
Ohr started in the NRLB Honolulu sub-regional office, and worked there until 2005 when he was appointed by a Republican General Counsel to NLRB’s Division of Operations-Management. In 2011, Ohr was then appointed Regional Director of the Chicago Regional Office (Region 13).
Besides being a Democrat, what is noteworthy about Ohr is that he has spent time in Hawaii, Southern California, and Chicago. Ohr graduated from the University of California Riverside in 1989, went on to Pepperdine School of Law where he graduated in 1994, then returned to Hawaii before moving to Chicago to head the NRLB Regional Office.
Former President Barack Obama has ties to all three localities and the dates of residence overlap between Obama and Ohr. In the tightly incestuous world of the Democrat Party, this alludes to potential collaborative connections going through Obama’s 8 years of the presidency.
During Obama’s terms, the makeup of the NRLB came under scrutiny when Obama filled two of the board seats through recess appointments, bypassing the Senate confirmation. The case went all the way to the Supreme Court, and they subsequently ruled that the appointments were invalid.
So, in terms of Obama-Biden, and now Biden-Harris, the NRLB has been a testing ground to push the envelope, shore up and increase Union power, and limit the power of businesses and the individual to work as they choose.
Ohr’s first order of business in ascending to General Counsel was to rescind 10 memos issued by his predecessor between 2018 and 2020. On February 1, Ohr issued a memorandum which set this in motion. Among the rescinded memos were directives and guidance addressing handbook rules, the legal standard in cases alleging union breaches of the duty of fair representation, the rights of employees who choose to refrain from union membership, and neutrality agreements and “whether they provide ‘more than ministerial support’ to the union’s efforts to organize.”
The National Right to Work LDF’s FOIA request also asks for documents pertaining to the subsequent suppression by Ohr of two Foundation-supported cases for rank-and-file hotel employees at Boston Yotel and Embassy Suites Seattle against UNITE HERE, an astroturf organization under the umbrella of the AFL-CIO. Influence Watch notes,
Unite Here […] has become notable for aggressive “corporate campaign” organizing tactics. Since 2009, the union has been a member of the AFL-CIO labor federation; as of 2017, it was the fastest-growing AFL-CIO union.
UNITE HERE’s leadership has also demanded “card check” public organizing. Former president Bruce Raynor stated back in 2003, “There’s no reason to subject the workers to an election”. Both cases challenged union officials colluding with management to foist union representation on hotel workers without even an employee vote. UNITE HERE has also pushed for minimum wage policies with loopholes allowing union contracts to undercut the wages paid to non-union employees.
National Right to Work Foundation President Mark Mix commented,
“This FOIA request seeks documents related to this scandalous power grab which is clearly designed to shut down multiple NLRB prosecutions of Biden’s union boss political allies for their violation of workers’ legal rights.”
Over the past year, we have seen local and federal policies instituted that have eroded and destroyed the rights of individuals and businesses to work freely without restriction or fear. The Biden administration is with one hand giving out more stimulus funds to the American people, while with the other hand strangling their ability to maintain self-reliance.