by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Following eight years of Democratic dominance of the National Labor Relations Board, Republicans have the chance to roll back union gains following confirmation of Peter B. Robb as the agency’s top prosecutor.
Republicans gained control of the agency’s top board in September, the first time it has held an NLRB majority in ten years. However, control of the five-member panel is not as important as who sits in the general counsel’s office: The top board issues decisions and sets precedent based on charges that originate from the general counsel and the 32 regional offices that report into him. The board members have no say in whether a case is brought before them.
“Not only is the general counsel setting the table, he’s making the decision as to whether there’s a picnic in the first place,” said Michael Lotito, co-chair of Littler Mendelson’s Workplace Policy Institute. “The general counsel fundamentally operates with virtually unfettered discretion. If he decides to issue or not issue a complaint, you’re pretty much stuck with that fundamental determination.”
Robb will replace career union attorney Richard Griffin at the post. Management-side attorneys concede that Griffin was an effective prosecutor from an ideological standpoint.
Steve Bernstein, an employer labor attorney at Fisher Phillips, said Griffin “achieved an awful lot” during his four-year tenure. Lotito called Griffin’s knowledge of the law “first rate,” but said his legacy on the board will be as “one of the most progressive general counsels in the history of the agency.”
Griffin oversaw aggressive rulemaking and the adoption of novel legal theories that departed from the standing precedent and traditional interpretations of the National Labor Relations Act.