Alternative Facts at the NLRB
Peter Robb, the NLRB General Counsel appointed by President Trump, has a change agenda for the agency. He recently took two actions that have garnered a great deal of attention among Board watchers. His announcements regarding a significant reorganization of the Board’s structure and processes and his intent to settle the McDonald’s case mark significant departures from his predecessor’s approach to these issues. But the attention they have attracted is due not only to the nature of his proposals, but also because of questions about the reasons that he is taking these actions.
First, he has proposed to fundamentally change the way that field operations are organized and how unfair labor practice charges are processed. Shortly after he was sworn in, Robb told NLRB staff that he was considering demoting the Board’s regional directors – the career civil servants who oversee the Board’s field offices – and subjecting their decision-making to the supervision of a small number of new appointees in headquarters who would report directly to the General Counsel’s office. In addition, Robb circulated a memo outlining a number of possible changes that would impose significant new obstacles for workers and unions seeking to have the Board investigate their charges that their rights under the Act had been violated.
Why does Robb say such dramatic changes are necessary? Although he hasn’t put his justification in writing, he is reported on several occasions to have justified these proposals as cost-cutting measures necessitated by cuts included in the Trump Administration’s budget request. Robb’s rationale, however, raises significant questions. In the modern era, almost all Presidential budget requests are dead on arrival on Capitol Hill. Trump’s 2019 budget request was even more dead than usual, if it is possible to have a state more inert than death. The baseline numbers in Trump’s 2019 budget request were inconsistent with the numbers included in legislation Congress had passed and Trump had signed several days earlier. Thus, the Associated Press deemed the budget “dead before arrival”. The budget request seems unlikely to be the compelling reason for Robb’s radical plans. To the extent that Robb’s budget concerns also encompassed the uncertainty around the Board’s 2018 funding, those concerns also would ring false. Just last week, President Trump signed into law an omnibus appropriations bill that gives the Board level funding for the rest of this fiscal year, providing no basis for draconian cost saving measures.
Similarly, Robb’s actions related to the highest profile case he inherited from his predecessor in the Obama Administration – the McDonald’s joint employer case – raise questions about his true motive. As I raised in OnLabor last month here, Robb justified his abrupt decision to seek a settlement in the McDonald’s case after more than three years of litigation in part because of the change in the joint employer law established in the Board’s decision in Hy-Brand. Shortly after Robb announced his intent to settle the case, however, the Board decided to vacate the Hy-Brand decision following a finding by the Board’s Inspector General that Board Member Bill Emanuel should have recused himself from participation in the case. If the change in law embodied in Hy-Brand was the true reason for Robb’s change in litigation strategy, one would expect that when the Board vacated the decision, Robb would rethink his dramatic action. Far from rethinking his direction in McDonald’s, Robb actually doubled down and quickly reached a settlement with McDonald’s without getting the approval of the charging party or the administrative law judge overseeing the trial.
Robb has repeatedly stepped into the spotlight on high profile issues and delivered shaky justifications for his conduct. In keeping with the independent nature of the Board’s authority, Board officials traditionally try to minimize the ideological tenor of their explanations for their actions. For example, during the Obama Administration, the Board described its motive for revising the election procedure rules as an effort to “modernize” and “streamline” the election process and to “better fulfill its duty to protect employees’ rights”. The Board majority did not say that their motive was to strengthen the labor movement – a more political-sounding rationale, but that could be easily extrapolated from the language that they did use. The revisions did, in fact, modernize and streamline the election process and so the stated rationale was not false; it was simply not the exclusive rationale. Robb’s rationales, however, do not seem like less political sounding versions of genuine reasons, but instead are false. The proof that they were not in fact the motivation for his actions is that now that they have fallen away, his intent to move forward has not changed.
There are many reasons to be disturbed by the questions surrounding the basis for Robb’s actions. If he is not sharing the true motives for his actions, he is depriving the public of the ability to assess the validity of the true reasons. We deserve to have an honest debate about whether his proposals are good ideas or not. In the face of questionable rationales, some in the public, including U.S. Senators and the NLRB’s own employees, are filling in the void with speculation about Robb’s real motivation, including whether it is ideological. The consequences of Robb’s actions could be significant for the rights of workers to act collectively and to have those rights effectively protected. The public would be best served by a more informed and transparent debate.