Labor Board Pick Litigated Reagan’s ‘Watershed’ Air Traffic Case

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By Hassan A. Kanu

President Donald Trump’s nominee for the top attorney job at the NLRB argued against a now-defunct air traffic controllers union in a case that critics consider a key event contributing to decades of decline in union membership and wage stagnation.

Peter Robb was nominated Sept. 15 by the White House to serve as general counsel of the National Labor Relations Board. Robb was the lead attorney in a controversial case that resulted in the firing of thousands of striking workers and the decertification of the Professional Air Traffic Controllers Organization. That experience could raise a red flag for unions and Democrats already concerned about what the labor board will do when it eventually gets a Republican majority and a GOP lawyer in the general counsel position.

“The PATCO case was probably the most important labor conflict of the last part of the 20th century,” Joseph McCartin, a labor historian and professor at Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor, told Bloomberg BNA.

Robb, a management-side employment lawyer at Downs Rachlin Martin in Vermont, would fill a general counsel role that comes with independent authority to initiate enforcement against employers or unions and to select which complaints the board will adjudicate. He is set to replace outgoing general counsel Richard Griffin (D). Critics in the business community view Griffin as having used arguably the most powerful position at the NLRB to shift labor policy to favor unions.

“Mr. Robb brings 40 years of experience practicing the National Labor Relations Act in both government and in private practice, making him eminently qualified to serve as General Counsel of the NLRB,” a White House spokesman told Bloomberg BNA. “His previous service at the FLRA over 30 years ago has little to do with the National Labor Relations Act or with the mission of the NLRB, which focuses on private sector employment matters. The FLRA’s mission is entirely confined to Federal Government employment and public sector unions.”

Thousands of Workers Fired

The PATCO dispute over pay and working conditions started well before the government and the Federal Labor Relations Authority filed unfair labor practice charges against the union in 1981. President Ronald Reagan’s administration eventually broke what a court said was an unlawful strike by the the air traffic controllers. Reagan held a press conference in the White House Rose Garden where he announced the firing of more than 11,000 striking workers.

The subsequent FLRA case Robb spearheaded resulted in PATCO’s decertification, and most of the striking workers were banned from the federal service for life by the Reagan administration.

“Someone can’t be judged solely by one action from years ago,” McCartin said, “but Robb’s appointment with the knowledge that he was involved in that very controversial, damaging affair does demonstrate a lack of sensitivity to how this will be regarded by people in the labor movement.”

The White House’s announcement of the nomination did not reference the PATCO case or Robb’s work at the FLRA. Robb’s law firm or LinkedIn profiles are similarly silent on that experience.

The National Air Traffic Controllers Association, which replaced PATCO, declined a request for comment. Robb and his firm didn’t respond to repeated requests for comment.

‘Lawyers Represent Clients’

William Gould (D), a former labor board chairman and current Stanford Law professor, called the PATCO case “a landmark and a great symbol for legal attacks on unions.”

Business community advocates said Robb’s work on the case shouldn’t be an issue.

“He was representing the government in those situations, lawyers represent clients all the time, sometimes in controversial cases,” Michael Lotito, co-chairman of Littler Mendelson PC’s Workplace Policy Institute, told Bloomberg BNA. Littler Mendelson houses one of the largest employment law practice in the country. Littler attorney William Emanuel (R) is set to be confirmed for a seat on the board as soon as next week.

“If you follow that line of reasoning I guess every lawyer who represented a union in a controversial case would also be disqualified,” Lotito said. “Clearly that’s not the standard, the standard is who knows the law, and Mr. Robb does and would make a great general counsel.”

Precedent for Private Union Battles

Many worker advocates and labor historians consider the PATCO action a seminal cause of the continuing decline of labor union membership and political power. Although it involved public sector workers, they say the case encouraged private employers to break strikes and replace workers as the Reagan administration had. Advocates and union officials have also pointed out that the National Labor Relations Act, which governs the private sector, compels employers to continue bargaining during a strike.

“PATCO didn’t have a right to strike because they were federal workers, and so the decertification of the union and firing of the controllers was lawful,” McCartin said. “But there were options that were favored by more moderate people that wouldn’t have involved permanently firing and replacing every striking worker—it was the fact that the Reagan administration took such a hardline position that really marked that as a watershed event.”

“It may be that Trump is trying to send that message—of a deeply hostile stance towards unions—through this appointment,” Gould said. “That’s not particularly surprising, all of Trump’s appointments in this area have been very anti-union in one sense or another.”

Bruce Rosenstein, now retired, was the regional attorney in the FLRA’s Washington office and supervised Robb while he litigated the PATCO case. He noted that PATCO’s strike was found illegal by the FLRA and the courts before the union was decertified.

“Peter was assigned a case, he didn’t make a decision to issue the underlying complaint,” Rosenstein said. “It’s no different going back for numerous years, Republican administrations nominate someone with expertise and background in management-side labor relations, and Democrat administrations” pick people with experience representing unions.

But Robb’s participation in a “lightning rod event” is “distinguishing about this appointment,” McCartin told Bloomberg BNA. McCartin wrote a history of the strike and case called “Collision Course: Ronald Reagan, the Air Traffic Controllers, and the Strike That Changed America.”

Gould agreed that Robb’s “association with this kind of symbolic case” and participation in other efforts against unions makes the appointment different.

“I think a management lawyer who is involved with landmark cases that have been used to promote the decline of unions is antithetical to what we would want,” Gould said. “After all the statute’s purpose is to promote freedom of association and collective bargaining, it seems that his record is at odds with that policy.”

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Chris Opfer at copfer@bna.com

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