The Trump administration is moving forward with the expected nomination of Peter Robb, a management-side labor law attorney in Vermont, to serve as general counsel to the National Labor Relations Board as the agency nears a Republican majority for the first time in nearly a decade.
Robb’s nomination, as a critic of several NLRB decisions under Democratic leadership, sets the stage for the new business-friendly makeup at the board to rollback Obama-era decisions in recent years, including rulings on social media policies, union elections and the rules governing the standard for what constitutes a joint employer relationship.
Management-side lawyers cheered word of Robb’s nomination, formally announced last week, to replace Obama administration general counsel Richard Griffin, whose term expires in November. Griffin, who is expected to argue in a closely watched U.S. Supreme Court case in October, hasn’t announced his post-agency plans.
Robb is a director at the firm Downs Rachlin Martin. He joined the firm in 1995 from the Washington office of Proskauer Rose, where he was a labor attorney for a decade. Robb’s clients have included Fletcher Allen Health Care Inc., National Elevator Bargaining Association, Otis Elevator Co. and C&S Wholesale Grocers Inc.
“Ultimately, the general counsel makes the decisions on the thousands of unfair labor practices filed a year,” said former labor board member Wilma Liebman, a former chair of the agency under former President Barack Obama. “The novel issues, the difficult cases would come from the general counsel.” She added: “He is the prosecutor.”
Liebman said many issues recently passed under the labor board have been subject of “overheated rhetoric” by Republicans and the business community, including disputes over the sped up pace of union elections and the scope of liability for joint employers. “Reversal of precedent doesn’t happen overnight, but over the next few years, we can see what a lot of people call flip flopping or policy oscillation,” she said. “Many of the dissenting opinions will be looked to for guidance going forward.”
Robb did not respond to a request for comment.
“Robb’s nomination and confirmation would set the stage for the board to reverse many of the pro-labor rulings issued by the Obama board,” lawyers from the management-focused firm Jackson Lewis wrote in a blog post in August.
As general counsel, Robb would be in a position to pick cases as “tests” for the new Republican majority to “reverse Obama-era decisions that business owners say tilt too favorably toward the union agenda,” Joseph Hess, a Barnes & Thornburg associate, wrote in a blog post in August.
Robb's Criticism of Obama-era NLRB
In May, Robb and fellow Downs Rachlin attorney Timothy Copeland Jr. put together a slideshow about the changing face of the NLRB. The presentation began with an image of the United States—a sea of red that depicted the counties President Donald Trump won compared to those of his Democratic rival Hillary Clinton.
“The current NLRB majority continues to narrowly define NLRB supervisory status, sometimes defying all common sense,” Robb and Copeland wrote in one slide, presented at a Downs Rachlin summit in Vermont. New members of the NLRB, they said, are “likely to agree that the Obama board went too far.”
The two Downs Rachlin lawyers identified several initiatives the current general counsel, Griffin, pursued. Those issues included disputes over how a company’s classification of a worker as an independent contractor, rather than an employee, can limit certain rights.
Robb has taken positions against what he and other Downs Rachlin lawyers called the “long-dreaded” NLRB rules that restrict the amount of time between the filing of a petition to unionize and the election.
“The NLRB has made it clear that the intent of the new regulations is to run an election as quickly as possible which, of course, will give the employer the shortest period of time to respond to a union election petition,” Robb and three other Downs Rachlin attorneys wrote in an advisory in April 2015. A year earlier, Robb was on a Downs Rachlin advisory that questioned an NLRB decision that the attorneys said “struck down another neutral and common employment policy.”
At the presentation in May, one slide asked whether—and how long—Obama-era labor policies at the NLRB would last. Two points raised these ideas: whether the new NLRB will be “collegial and productive” and whether the general counsel and regional attorneys follow the board’s lead.
Trump earlier nominated two attorneys for posts on the NLRB itself, William Emanuel of Littler Mendelson and Marvin Kaplan, a lawyer in a division of the Occupational Safety and Health Administration. The U.S. Senate confirmed Kaplan 50-48 on Aug. 2. Emanuel, who has long represented major U.S. companies in labor fights, is awaiting a vote.
Robb earlier was chief counsel to NLRB member Robert Hunter, a Republican, who left the agency in 1985 to join Proskauer Rose as a partner. Then-U.S. Rep. Barney Frank, the Massachusetts Democrat, said at the time that Hunter had been a "loyal supporter of [chairman] Donald Dotson in the transformation of the NLRB into a fundamentally anti-union entity."
Griffin has held the NLRB general counsel post since his confirmation in October 2013. The former union lawyer was the Obama administration’s second pick for general counsel. The White House first nominated Lafe Solomon, then a longtime lawyer at the NLRB, for the post. But the Republican-controlled Senate didn’t act on the nomination.
Griffin, at the time of his nomination as general counsel, was serving as a member of the NLRB. Obama, defying Senate inaction, had used the Constitution’s recess appointment power to name Griffin and two others to the board in January 2012. The U.S. Supreme Court in June 2014 struck downObama’s recess appointments to the NLRB.