The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2021 edition. To view other editions or to sign up for a free subscription, click here.

Unprecedented: Biden removes NLRB top prosecutor despite 11 months left on his term

WASHINGTON, DC – With National Right to Work Foundation staff attorneys having won numerous National Labor Relations Board (NLRB) cases in recent years curtailing coercive union practices, union bosses pushed the Biden Administration to take unprecedented measures to protect Big Labor’s power over rank-and-file workers.

In January, top union bosses, including Service Employees International Union (SEIU) chief Mary Kay Henry, formally demanded that upon taking office President Biden make the unprecedented move of removing NLRB General Counsel Peter Robb, despite nearly a year remaining on his term. Union officials were furious Robb had frequently sided with Foundation-backed employees in many cases during his tenure, including cases in which workers successfully challenged union boss demands that workers subsidize their spending to put Biden in the White House.

Just 23 minutes after taking office on January 20, in response to Big Labor’s demands, Biden took the legally dubious action of removing Robb. Robb’s Senate-confirmed term runs through November 2021.

In the 85-year history of the NLRB, no previous NLRB General Counsel had ever been fired before their four-year term — meant to protect the office from political pressure — expired. For example, Robb’s predecessor, Obama-era NLRB General Counsel Richard Griffin, served almost a full year into Trump’s presidency to complete his term.

Following Robb’s unprecedented removal, Biden designated union partisan Peter Ohr as “Acting General Counsel.” Within days of his installation, the ersatz General Counsel moved to undo actions taken by Robb in Foundation-backed cases, in each instance reversing course to the benefit of Big Labor officials.

On January 29, Ohr ordered Seattle NLRB officials to stop prosecuting the Embassy Suites Pioneer Square hotel and UNITE HERE Local 8 union officials for making a backroom agreement designed to unionize housekeepers through a coercive “Card Check.” The “Card Check” bypassed an NLRB-supervised secret-ballot election. The very next day after Ohr’s order, Boston NLRB officials also pulled their prosecution of Boston Yotel and UNITE HERE Local 26 officials in a similar case brought by four Foundation-represented housekeepers.

Biden’s “Acting” Appointee Targets Foundation Cases Scheduled for Trial

In each case, Foundation staff attorneys were prepared to argue at trial that the “top-down” agreements for “Card Check” were illegal and tainted the installation of the union. But by pulling complaints weeks prior to when trials were set to begin before Administrative Law Judges (ALJs), Ohr blocked the cases from even being heard.

Those orders were then followed by a flurry of other activity by Ohr that included instructing local NLRB officials not to move forward with cases related to enforcing workers’ Beck rights, which protect them from being required to fund union political activities.

“Biden’s intent in firing Robb was obvious: So his handpicked NLRB replacement could move unimpeded to protect the privileges of his union boss political allies at the expense of individual workers’ rights,” observed National Right to Work Foundation Vice President Patrick Semmens. “Robb often sided with Foundation-backed workers, which made him a threat to Big Labor that needed to be eliminated.”

Though Ohr, at Biden’s behest, is weaponizing the NLRB against independent-minded workers’ rights so the union elite can escape scrutiny, are already before the full Board and by law out of the General Counsel’s control.

Through August 27, 2021, the Trump-appointed Board majority will retain their seats and are immune to Biden’s whims. That means these cases for workers still could take down erroneous union boss-friendly precedents that have harmed workers for decades.

Groundbreaking Foundation Cases Still Advancing to Full Labor Board

Among the Foundation cases pending at the full NLRB in Washington are challenges by three separate groups of workers to the pernicious “contract bar” doctrine (see page 1), a separate case about “neutrality agreements” for Corpus Christi, TX-based nurse Marissa Zamora and Michigan AT&T employee Veronica Rolader’s challenge to restrictive “window period” policies which let union bosses collect forced dues even after a contract has expired.

Semmens added: “The Foundation is proud to stand with workers challenging all types of union coercion, and will continue to stand ready to defend workers against Big Labor and, when necessary, the Biden-Harris Administration.”