Bloomberg Law
May 3, 2019, 4:24 PMUpdated: May 3, 2019, 8:34 PM

Challenges to Union Fees Made Easier by Top NLRB Lawyer (2)

Robert Iafolla
Robert Iafolla

The National Labor Relations Board’s top lawyer made it easier for workers represented by unions but aren’t members to challenge the expenses they’re required to pay for the costs of collective bargaining and other nonpolitical activities.

General Counsel Peter Robb said in a memo that workers who object to paying for particular union expenditures don’t have to explain why they shouldn’t have been charged and give the agency evidence or investigative leads to support their allegations. Prior general counsels had called on workers to provide such information, Robb said in a memo published on the NLRB’s website May 3.

Requiring workers to support their allegations with explanations and evidence prevents them from using the NLRB to hear their challenges, Robb said. It also doesn’t jibe with precedent putting the onus on unions to prove the costs they charged to nonmembers were permitted by law, he said.

Robb’s memo is another sign that he’s strongly interested in the NLRB policing union misconduct. Some union attorneys and worker advocates call Robb’s agenda anti-worker and anti-union, although management attorneys and union opponents say he’s trying to correct the agency’s course after the pro-labor Obama years.

“This is a significant step forward to putting the burden of proof back on the union officials where it belongs when it comes to justifying the amount of forced fees,” Patrick Semmens, spokesman for the conservative National Right to Work Legal Defense Foundation, said in an email.

On the other hand, the change in policy outlined in the memo could lead to unions expending resources to rebut meritless challenges filed by aggrieved nonmembers who think they shouldn’t have to pay any fees, said Kate Swearengen of the union-side law firm Cohen, Weiss and Simon.

Prompted by Precedent

Robb told regional directors and other staffers that he sent the memo, dated April 29, in light of the NLRB’s March ruling prohibiting unions from using fees from nonmembers to fund lobbying expenses. The ruling and Robb’s memo are important in states without so-called right-to-work laws that prevent private sector unions from requiring nonmembers to pay fees.

Unions can’t just deduct salaries and benefit expenses from nonmember fees to meet their legal obligations, according to the memo. They should also remove “spillover costs” generated by lobbying, such as expenses for overhead, preparing lobbying literature, and reporting on lobbying in union publications, Robb said.

Robb also said agency attorneys shouldn’t dismiss charges that challenge expenses just because the amount is trivial.

“Regions should fully investigate the propriety of a union’s allocation calculations without regard to the amount or percentage of the expense in question or the magnitude of the alleged overcharge,” he said.

(Updated to include additional commentary.)

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Simon Nadel at; Terence Hyland at