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labor What Is the National Labor Relations Board and How Does It Affect Unions?

Though the NLRB keeps a lower profile than many other government agencies, it holds a great deal of power over the country’s workers and labor movement.

Workers in front of the NLRB offices
Film industry parking attendants in New York City filed for an election with the National Labor Relations Board. They voted to join Communications Workers Local 1101 in December 2018. Photo: CWA.,CWA

On January 20, a guy named Peter Robb lost his job. This was not remarkable in and of itself; by this point in the pandemic, millions of people have been left jobless, and as of December 2020, the national unemployment rate hovered at a grim 6.7%. But Robb’s bad day made headlines, because he'd been a thorn in the side of the labor movement since Trump appointed him in 2017 as the general counsel for the National Labor Relations Board (NLRB). 

After a few false starts, the NLRB, an independent government agency, was officially established with the passage of the 1935 Labor Relations Act (NLRA, also known as the Wagner Act). Only then did the agency finally get some teeth and begin fulfilling its stated mission: to assure fair labor practices and defend workplace democracy in the U.S.

Robb is a Republican and longtime management-side attorney, best known for helping Ronald Reagan bust the Professional Air Traffic Controllers Organization (PATCO) in 1981, when more than 11,300 striking air traffic controllers lost their jobs. The PATCO strike has been seen as a catalyst for the downfall of organized labor power in the U.S., and Robb stayed true to his scabby legacy by causing as much damage as he could in his new post at the NLRB. He gutted the agency, shrinking its staff, starving it of much-needed funds, hamstringing organizing efforts, and trying to interfere with the NLRB’s own staff union

It will take a tremendous amount of energy to rebuild the NLRB, but Biden’s swift firing of Robb and his deputy general counsel and fellow career union-buster Alice Stock, another Trump appointee, is certainly cause for celebration. (In a twist of delicious irony, Robb initially refused Biden’s request to resign, essentially arguing that the new administration lacked “just cause” to let him go. Honestly, you almost have to hand it to him for sheer boneheaded comedy value).

The reaction of the House of Representatives’ Labor Caucus to Robb’s firing was downright jubilant. “Peter Robb is an anti-union extremist appointed by Donald Trump to undermine organized labor and the rights of workers,” the legislators wrote in a statement. “Since his appointment, he has willfully failed to do his duty to protect union rights, interfered in union elections, and refused to hold employers accountable for their treatment of workers. This is a major step forward to reverse the previous administration’s destructive anti-union policies and a welcome sign for working families that desperately need a president committed to their survival.”

Why does it matter that these two jerks just lost their gigs? The NLRB is governed by a five-person board and a general counsel, and the latter wields considerable power. Board members and the general counsel are appointed by the president and confirmed by the Senate; board members are elected to five-year terms, while the general counsel serves for four and holds the most influence over which cases are investigated. Certain presidential administrations have weaponized that power to suit their political goals. Republicans like the notoriously anti-union Ronald ReaganGeorge W. Bush, and most recently Donald Trump have appointed board members with a pro-business, anti-worker bent, while Democrats like Barack Obama have taken a more worker-first approach. By signaling their willingness to prioritize and overhaul the NLRB (and root out the rot of Trump’s conservative board majority), the Biden administration has delivered one of the big-ticket items on labor’s wishlist.

Though the NLRB keeps a lower profile than many other government agencies, it holds a great deal of power over the country’s workers and labor movement. The NLRB is tasked with enforcing labor laws like the NLRA, investigating complaints, and resolving labor disputes, but its most important job is conducting elections for groups of workers who are trying to organize or join a union and have not won voluntary recognition from their employer. The board’s website is a treasure trove of past and current election filings; right now, workers from all kinds of industries, from coffee shops to hospitals to residential staff at universities like my alma mater, are waiting for their chance to win representation. It’s an important step in the road to unionization, and many crucial union votes have come down the NLRB pipeline. 

For example, Amazon warehouse workers in Bessemer, Alabama, are midway through this process. Despite Amazon’s best efforts, their election is set, and their mail-in vote on February 8 is primed to make history. It’s good timing too, because had they filed their initial petition just a few weeks earlier, they might have had to face down a board stocked with Trump loyalists. Instead, these warehouse workers are preparing for the first big union battle (hopefully a win!) of the Biden era.

Now that Robb and Stock are gone, the top job is being filled by the NLRB’s Chicago regional director, Korean-American attorney Peter Sung Ohr, who will likely serve as the agency’s acting general counsel until Biden announces his nominee for the role. On January 25, Politico's Rebecca Rainey reported that, in an email to staff, Ohr wrote, “I look at the NLRB from the viewpoint of my working-class immigrant parents. Would my parents know what to do if they were retaliated against in the workplace? How would they like to be treated if they had the wherewithal to come to the NLRB for help? Ultimately, the NLRB exists to provide an important service to our community members.” Ohr’s obvious contrast with his Trumpist predecessors has already offered a breath of fresh air for those who have been anxiously watching the NLRB self-combust for years.

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The bar on worker’s rights has already been lowered to subterranean depths, and it will still take a lot of digging to get us back near the surface. Yet Biden’s administration has made several other encouraging moves in the past week, including strengthening safety rules under the Occupational Safety and Health Administration and planning to nominate California labor secretary and immigrant workers’ advocate Julie Su to the number two position in the Department of Labor. Biden and the Democrats must now use their current position of power to keep taking bold actions, ignoring Republicans’ temper tantrums, and pass meaningful labor law reform to give workers a fighting chance (passing the wide-ranging PRO Act would be an excellent start).

It’s certainly nice to be back on ground that approaches a level playing field instead of digging into four more years of trench warfare, but who knows how long the honeymoon will last? The U.S. labor movement has a long memory and has seen countless politicians with pretty promises come and go. As Frances Perkins, the first woman to lead the Department of Labor and a key architect of the New Deal, said in 1935, “The process of recovery is not a simple one. We cannot be satisfied merely with makeshift arrangements which will tide us over the present emergencies. We must devise plans that will not merely alleviate the ills of today, but will prevent, as far as it is humanly possible to do so, their recurrence in the future.”