Setting The Record Straight Before The Abruzzo Hearing

Expect several Senators to claim Peter Robb's firing from the NLRB was a scandal. But the real scandal was Robb himself.

After a little over two months of waiting since Biden nominated her for the position, the Senate committee hearing of Jennifer Abruzzo to be the next General Counsel of the National Labor Relations Board has been set for next Thursday, April 29 at 10:00 AM. Abruzzo, a career NLRB attorney until a brief foray as an in-house union lawyer during the Trump administration, would take over the job full-time from Acting GC Peter Sung Ohr, who has manned the position since January 25 since the Election Day firings of Peter Robb and his deputy Alice Stock.

There has not been any indication yet that Abruzzo won’t be confirmed. The Democrats’ margins in the Senate are the thinnest possible for party-line confirmation, but Biden has gotten all but one of his nominees through so far and no Senator has come out expressing any issues with Abruzzo. However, her hearing is still expected to be contentious due to President Joe Biden’s termination of Robb. This has been signaled by Republican Senator Richard Burr’s random mention of the firing during Marty Walsh’s hearing for the Secretary of Labor position; a quixotic letter to the White House penned by Rand Paul and three other Republican Senators expressing their fury with the firing; and numerous other condemnations of the firing by the House GOP’s labor caucus.

While Republican Senators will no doubt hit Abruzzo with the usual claims of bias from her time spent recently as a union-side labor lawyer, the star of the hearing is likely to be Robb and the circumstances of his firing. We’ll hear all about how the firing is unprecedented in history (that’s only technically true), how it’s unlawful under the National Labor Relations Act or even unconstitutional (neither claim is likely to hold up in court), and how Biden has politicized the NLRB through his actions (the NLRB has been the most politicized agency in the country since its inception). In other words, the Robb firing will be painted as a scandal, and the argument will be that Biden’s usurper should be denied her seat until Robb is reinstalled and allowed to serve out the remainder of his term.

But the only real scandal is Peter Robb’s tenure in office. Over the course of three years, Robb set out to destroy the NLRB from the inside and permanently cripple the agency from being able to enforce federal labor law. This is not some baseless accusation. It is the only conclusion one can logically reach after reading a report released last month from the Government Accountability Office detailing the agency’s resource management in the Robb years. Robb’s documented sabotage can be summed up as follows:

• The Board’s staffing decline accelerated rapidly since 2017, especially in the regional offices where the bulk of labor law enforcement actually occurs. Robb, who controlled almost all hiring from the GC’s office, purposefully refused to hire replacements for staff that left due to retirement or finding other employment.

• Apparently unhappy with the slow trickle of natural attrition to the field staff ranks, Robb and Chairman John Ring deployed an early retirement program in 2018 to try and buy out older personnel. They anticipated that 125 people would take the offer and prepared resources as such, but less than a third of that number accepted. The Board failed to use the excess funds in that year.

• Robb and Ring justified the agency’s decreasing staffing levels due to sizable projected budget decreases that they asked Congress for. Congress ultimately kept the budget static each year of the Trump administration, continuing a history of flat funding dating back to 2014. Nonetheless, Trump NLRB officials kept asking for budget decreases to their own agency.

• Robb also regularly claimed that staffing should decrease commensurate with the agency’s decreasing workload. But all data shows that staffing decreased far faster than the Labor Board’s falling intake of Unfair Labor Practice charges and representation filings (which were falling in large part due to unions’ fear of Robb using their cases to push bad precedent).

• In back-to-back years, the NLRB failed to spend millions of dollars in funds allotted by Congress, a phenomenon virtually unrivaled at other agencies during this time. The GAO report establishes that Robb’s and Ring’s explanations for the huge 2019 surplus—that a few federal contracts fell through—was completely bogus. This money, of course, could have been spent hiring needed field staff.

• Instead of simply hiring people to fill the agency’s self-created staffing crisis in the especially-hard-hit western regional offices, Robb proposed a “resource sharing plan” that would effectively funnel investigation of ULP charges from overworked offices to be done by staff in entirely different states. Robb would claim that this plan was essentially the brainchild of the agency’s only black male Regional Director, but the GAO report reveals that “there was pressure from NLRB management to develop the District 4 Resource Sharing Plan because of the potential for layoffs in regions with less case intake.” The “plan” thus would have worked as both a short-term cudgel against individual offices while papering over the long-term issues of staffing imbalances between offices. Investigation quality would have inevitably suffered.

And while the GAO report did not investigate the reasons for Robb’s office consolidation proposal in 2018, the intent of that scheme was clear: to centralize power in the General Counsel’s office during conservative leadership to dramatically decrease enforcement across the country while streamlining efforts to direct suitable test cases to Republican-majority Boards. This was an attack on the agency in general, but most pointedly on the Regional Directors; Robb had proposed the installation of a new layer of regional supervision which would control their work and result in a downgrading of their government rank. At minimum, this was an attempt to steer some of them into retirement.

Importantly, none of my complaints or criticisms here are substantive in nature. I haven’t said anything about the ideological agenda Robb pursued as GC or decried any specific case law that he sought to overturn. I haven’t even mentioned any of the internal changes to case handling or investigations that Robb enacted or the war he led against members of the NLRB’s employee unions. The above facts simply deal with a numbers game, and it’s one with a convincing score: Robb dramatically shrunk the size and influence of the agency under the guise of lack of work. When certain offices pled that they had too much work, he refused to use the millions of unused dollars he helped covertly compile to actually remedy their situation by hiring new workers. The goal was a permanently crippled agency, one that could not be resuscitated by a more friendly administration confined to the realities of budget politics. No surprise, then, that the Office of Budget Management’s annual employee surveys found NLRB staff to be the most demoralized in the entire federal government.

While no other General Counsel had been fired before Robb, no General Counsel before Robb had pursued this sort of internal sabotage of the agency, including past Republican nominees. The closest comparison in NLRB history to Robb was Donald Dotson, a Board Chairman during the Reagan administration who many accused of engineering a massive case backlog, but he worked under an approving president and enjoyed statutory protections that the GC doesn’t have. It is simply bad faith to claim outrage at Robb’s firing when he demonstrated sustained hostility to enforcing the law he swore to uphold, and Senate Democrats should be prepared to say so next Thursday.

The NLRB needs someone in charge who will respect the delegation of power to the regional offices and commit to ameliorating the agency’s staffing crisis in the field. Chair McFerran and Acting GC Ohr seem committed to this effort, and I assume Abruzzo will join them in saying so at her hearing. She’s the right person for the job and should be confirmed as soon as possible to bring a sense of stability back to the agency.