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Trump Labor Board Declines to Probe Warren, Sanders Campaigns

Nov. 7, 2019, 7:09 PM

The federal labor board’s Trump-appointed general counsel won’t prosecute charges of unfair labor practice filed against the campaigns of Democratic presidential contenders Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.).

Peter Robb, the National Labor Relations Board’s top prosecutor, dismissed on Nov. 6 a charge filed against Warren for President Inc. Robb’s office on Nov. 1 dismissed a separate charge against Bernie 2020 Inc. That means board lawyers will not pursue unfair labor practice complaints against the campaigns.

The NLRB regional directors who issued a pair of dismissal letters didn’t say whether they found any evidence supporting the charges, filed against the Sanders campaign by a former staffer and against the Warren campaign by a Sanders supporter. They pointed to the unique circumstances and said pursuing the cases “will not effectuate the purposes of” federal labor law.

The board’s typical process is to dismiss charges when it doesn’t find any merit based on a preliminary investigation, and to issue formal complaints when charges are backed by at least some evidence.

A former Sanders Iowa campaign staffer in July filed a charge with the NLRB, alleging that certain employees were retaliated against for their union activities. The charge against Warren’s operation was filed the following month by a Sanders supporter who alleged the campaign’s confidentiality requirements are too broad. The NLRB accepts charges even if the filer isn’t an employee of the organization alleged to be violating federal labor laws.

The allegations took on a novel dimension because unionized presidential campaigns are a relatively new phenomenon. Sanders campaign staffers formed the first such union in March of this year.

The NLRB, in dismissing the charges, said the unique nature of the employers—entities that likely won’t exist for an extended period of time—and the fact that the board has never before exercised jurisdiction over campaigns weighed against prosecuting the charges.

Filing a formal, government-backed complaint against the campaign after an investigation would’ve also raised serious First Amendment considerations, Robb’s office said, given that much of a campaign’s business is engaging in political speech.

Robb’s decision means the NLRB likely won’t adjudicate any new disputes between campaigns and their employees’ unions during his four-year term. He took office in Nov. 2017.

“The General Counsel notes that the Board has never held that presidential election committees fall within its jurisdiction due to the minimal impact on interstate commerce because of their unique and finite nature,” acting NLRB regional director Paul Murphy wrote in the letter dismissing the charges against Warren’s campaign. “In addition, the General Counsel asserts that the prosecution of a presidential election committee, which is so entwined with political speech protected by the Constitution, could raise serious First Amendment considerations.”

The letter dismissing the charge against Sanders’ campaign contained similar conclusions. Robb’s office noted in both letters that the general counsel “has unreviewable discretion” to determine whether to issue a formal, government-backed complaint and prosecute charges filed with the NLRB, and that “he has decided not to prosecute this case.”

Representatives for the Warren and Sanders campaigns weren’t immediately available for comment. The NLRB didn’t immediately respond to a request for comment from Robb.

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

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com