The National Labor Relations Board is one of the most powerful regulatory agencies in government and it’s a sure bet Joe Biden is eager to put his stamp on it. Currently, there are three Republicans, one Democrat, and one vacancy on the board. Members are appointed to five-year terms.
Biden has named the board’s only Democrat, Lauren McGarity McFerran, to the post of chairman. At the same time, he asked the current general counsel, Peter Robb, to resign or be fired. Robb has ten months left to serve in his Senate-confirmed position and is refusing to comply with Biden’s demand.
Robb in a letter to the White House said he “respectfully” declined to resign “less than 10 months before the expiration of my term.”
He added that his termination would “set an unfortunate precedent.”
Labor groups and unions wary of Robb had been pushing Biden to fire him because of his perceived pro-business favoritism over workers, according to Bloomberg.
Breaking: Biden has asked the NLRB's general counsel Peter Robb to resign.
Robb — who is is known for his aggressive anti-union, pro-business positions — is the first NLRB general counsel to be forced out in more than 50 years. https://t.co/WtiuHKq8uu
— Steven Greenhouse (@greenhousenyt) January 20, 2021
Robb has since been fired by the president — the first NLRB general counsel to be fired in 50 years.
The position of general counsel is a powerful one on the board. The GC sets the board’s agenda and exerts influence over the board’s rulings. With a Republican majority on the board and a Republican general counsel, the Democrats and big labor’s mischief-making can be kept relatively under control.
What kind of mischief? In 2015, the Obama-appointed NLRB proposed rule changes that would have virtually destroyed the franchise model of success. Some individual franchise owners were cheating employees out of hours and pay and those employees sued McDonald’s Corporation on the basis that the franchisor was a “joint employer” with the franchisee and thus liable for everything from sexual harassment claims to personal work-related injuries.
McDonald’s and other franchisors would have been forced to take a much more active role in a franchisee’s business. It would have destroyed the model that had been wildly successful for more than 50 years.
Traditionally, individual franchise owners were legally treated as the sole employers of their workers. Because the franchisors and the franchisees operated as separate legal entities, the franchisors were isolated from any labor disputes that arose between the franchisees and their employees. The result of the NLRB’s position eliminates this legal separation, allowing the corporate franchise company to be held responsible and liable for the employment decisions of its individual franchisee owners. The “joint owner” classification posited by the NLRB in the McDonald’s case could mean that the franchisor (in these cases, McDonald’s) could be held responsible for the labor relations at its restaurants or, possibly, that workers at all the McDonald’s restaurants owned by franchisees could be treated as if they work for the corporation. The practical result of the NLRB decision could be to eliminate the franchise model due to potential labor liability.
The goal of Big Labor in all of this is to force McDonald’s Corporation to bargain as a single entity for all of its franchisees. Instead of unionizing each individual store, labor could take a shortcut and unionize tens of thousands of workers at once. No doubt Biden wants to bring the rule back and give his friends in Big Labor a gift.
The courts had yet to rule on the regulation’s legality when Donald Trump took office. Board members appointed by Trump rescinded most of the offending language and the franchise model was safe — for the moment.
Now Biden’s plan appears to be to put pressure on individual GOP members to resign so he can name Democrats and give Big Labor a majority.
U.S. Rep. Virginia Foxx, of North Carolina, called the firing “unacceptable” and urged Biden to rescind it.
“President Biden’s continuous calls for unity and civil discourse upon taking his oath of office are already proving to be empty aspirations,” she wrote in a statement.
“The Biden administration appears to be rewarding their friends in Big Labor on day one through this inappropriate demand. … I urge President Biden to rescind this ill-advised and divisive action against a Senate-confirmed official and allow General Counsel Robb to finish the job he was appointed to do independently and free from political influence.”
Firing the NLRB general counsel would be “unprecedented.” So much for a return to “normal.”
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