Role of the Chief Prosecutor

The NLRB has two sections: the adjudicatory branch that decides cases and the prosecutorial wing.

In the adjudicatory branch, the board (usually five members in DC) is the highest interpreter of the law within the agency. Under its authority are the administrative law judges (ALJs) — the trial judges.

The regions are part of the prosecutorial wing. They investigate unfair labor practices, issue complaints, and prosecute them. Presiding over the regions is the general counsel, also located in DC. He or she is the gatekeeper with the power to decide which cases to prosecute and which to dismiss.

During most of the agency’s history, decision-making about run-of-the-mill NLRB cases was delegated to the regional directors. The GC’s office became involved in cases involving new issues or issues requiring higher levels of agency scrutiny.

Robb saw the job differently. For him, the GC position was an avenue to reshape federal labor law in a pro-business direction.

Robb’s Power Grab

Before becoming the GC, Robb had spent his legal career as an aggressive anti-union management lawyer. Among his accomplishments were aiding in the defeat of the Professional Air Traffic Controllers Organization (PATCO) strike under President Ronald Reagan. His success in crushing that strike raised the threat of permanent replacement for all striking workers, a threat still felt to this day.

Robb was appointed to the position of GC by Donald Trump in 2017. Like most Trump appointees, he set out to undermine (some might say destroy) the agency he was appointed to help lead.

Robb showed his true colors early in his tenure. He attempted to restructure the agency by diminishing the role of the regional directors and centralizing decision-making power in his office.

He sought to create a new position, directly under him, that would decide which cases would be tried, rather than the regional directors deciding. He even sought to downgrade the civil service status of the regional directors, hoping many would retire and rid the agency of its most knowledgeable employees.

His efforts managed to mobilize the relatively staid professionals occupying the higher ranks of the regional offices. Robb backed off when his proposals were confronted with massive blowback from within and outside the agency.

Although his plan had collapsed, he was undeterred. To the horror of many onlookers, he produced a list of changes to board law that he hoped to accomplish as GC — all anti-worker and anti-union.

Got McDonald’s Off the Hook

In an early and infamous Robb intervention, he attempted to settle a case that was being tried before an ALJ, involving McDonald’s, to the detriment of the workers and union involved.

The issue concerned corporate liability for the unfair labor practices committed by one of its franchise restaurants. Most franchisers set the terms and conditions for their franchisees.

A longtime goal of those fighting for workers’ rights is to hold corporations legally responsible for the bad acts of their franchisees — since the corporation holds the money and the power. Until the McDonald’s case, however, the NLRB had not sought to find such liability.

In the McDonald’s case, the prior GC (before Robb) and the region that investigated the case believed they had enough evidence to prove that McDonald’s was a “joint employer”; they issued an unprecedented complaint against both franchiser and franchisee. Employers were furious.

When Robb took over the GC position, he attempted to settle the case on behalf of the agency, averting a ruling finding McDonald’s Corporation liable.

The ALJ had the power to stop the settlement, and she did. But contrary to regular agency practice, Robb then had NLRB attorneys contact the individual fired workers in the case and convince them to take the settlement, doing an end run around the judge.

It was reported that many of the workers settled — for money and no job — because they felt they had no choice.

An Anti-Union Approach

In his campaign to change board law, Robb instructed regions to issue complaints contrary to existing law, and used those cases to argue to the board that the law should be changed.

He argued that Scabby the Rat should be unprotected. He argued that group legal claims, such as challenges to wage theft, should not be considered protected concerted action. He argued against employee use of company email for protected purposes. He argued for greater scrutiny of unions. He changed the standards for determining when unions had violated the duty of fair representation.

More and more cases were sent to the Division of Advice, a section within the GC’s office, delaying action and diminishing the authority of the regional directors.

All cases involving issues related to the COVID-19 pandemic were sent to the GC’s office; few complaints were issued involving employer action in COVID-related issues.

Hollowing Out the NLRB

Robb also oversaw the slow hollowing out of the agency.

Across the country, jobs have been left vacant while the agency failed to spend its budget in 2018 and 2019, prompting an investigation by the NLRB’s inspector general. Underspending, like overspending, violates the laws that establish Congress’s spending authority.

As the regions lost people, the workload increased significantly for those still working at the agency.

There is a backlog of trials waiting to be scheduled. Those that are being scheduled are taking longer and longer to get before an ALJ.

Robb pushed for tighter time restrictions on investigating cases, making it harder for NLRB attorneys and investigators to develop evidence — and then dismissing cases for lack of it.

Not a Moment Too Soon

Robb could not be fired too soon. Had he not been discharged, his term would have lasted until November 2021 — but the effect of his reign would last much longer.

It takes months, sometimes years, for a case to reach the NLRB. The sequence of events is as follows: charge filed, investigation, complaint issued, trial, ALJ decision, appeal to the board.

During the Trump years, Robb and the Trump appointees to the board eroded worker rights under the NLRA in stunning ways. For example, in an outrageous decision last year, the board determined that stewards no longer have special status when processing grievances, overturning decades of NLRB law.

Stewards can now be disciplined for alleged inappropriate language or behavior at grievance meetings. Prior to this ruling, stewards were considered to be on the same level as management when sitting a grievance.

To change the law back, a pro-worker board majority will need to do so in a case involving that issue. Had Robb remained in office until the end of this year, no such complaint would be authorized, so the case could not get to the board. Thus, it would be years before that issue could be reconsidered, at best. Cases that start now could reach the board around the end of this year — around when, in the best-case scenario, the Democrats could achieve a board majority again.

Who will replace Robb? We don’t know yet. But there will be an acting GC right away, which will move things forward while the next permanent one is selected.

Firing Robb was an essential step in reclaiming the NLRB as an agency that protects the rights of working people. But it is only a first step.