The National Labor Relations Board’s general counsel is on pace this fiscal year to revive seven times more unfair labor practice cases that were brought against unions than against employers, driven in part by directives he’s issued calling for stricter rules for organized labor, according to a review of agency records and interviews with attorneys.
While exercising the discretion that general counsels have always had to reopen previously dismissed cases, Trump appointee Peter Robb last year also ordered staffers in regional offices to start pursuing charges against unions for negligent behavior, such as losing an employee complaint or not returning phone calls when the worker has questions, that the agency previously viewed as harmless error.
In the same vein, Robb announced in February that unions should have to tell new employees the difference between what they’d pay in dues as members as opposed to the amount in fees they’d pay as nonmembers. That policy is important in the states without so-called right-to-work laws that ban unions from requiring nonmembers to pay “agency fees” for nonpolitical expenses.
Robb also instructed regional staffers to go after unions when they enforce some requirements on workers who want to withdraw their permission to have dues automatically withdrawn from their paychecks.
The number of regional unfair labor practice cases that the NLRB in Washington brings back on appeal each year is tiny compared with the number challenged. Still, the results from that process provide a window into how general counsels exercise their discretion as administrations and priorities change.
“What’s shown in the appeals stats is a microcosm of a larger anti-union and anti-worker agenda,” said Julie Gutman Dickinson, managing partner of the union-side law firm Bush Gottlieb.
Among the cases Robb revived was an Illinois excavator’s previously dismissed charge against a union for displaying a large rat balloon at a protest, something the NLRB and courts have permitted for decades. Robb’s campaign against Scabby the Rat and other cases he’s brought back on appeal go beyond the usual partisan swings in approach when a Republican general counsel succeeds a Democratic one, according to union attorneys and worker advocates.
The NLRB and the general counsel’s office declined to comment.
General Counsel’s Discretion
Barry Kearney, a former NLRB associate general counsel who worked at the agency for nearly 50 years, said each of the agency’s top lawyers have their own views of what’s protected by the National Labor Relations Act.
Richard Griffin, the NLRB’s general counsel from 2013 to 2017, “didn’t give employers any breaks” based on the appeals statistics from his final year in office, said Kearney, an attorney with management-side law firm Cozen O’Connor. Now Robb is exercising the discretion over appeals that he’s afforded under the NLRA in his way, he said.
“They can say it’s an anti-union agenda, but I have no reason to believe he’s not taking his oath seriously and looking into what he views as needing to be rebalanced,” Kearney said.
Robb has been more active in enforcing the protections workers have against union coercion, correcting some of the pro-labor excesses under the Obama administration, said Patrick Semmens, spokesman for the conservative National Right to Work Legal Defense Foundation.
GC Switch: Griffin to Robb
Bloomberg Law obtained NLRB appeals statistics via Freedom of Information Act requests. While career staff in regional offices make the call on whether unfair labor practice allegations merit issuing complaints, charging parties can appeal dismissals to the general counsel’s office.
Under Griffin, the GC’s office reversed 19 regional director dismissals of charges against employers in fiscal year 2017, representing 2.2 percent of those cases reviewed. The office brought back just one case against unions, or about 0.2 percent of those reviewed.
Robb, a former management attorney in Vermont, took over as general counsel about seven weeks into fiscal year 2018. During that fiscal year, the GC’s office revived 14 cases against employers (2 percent) and 16 cases against unions (3.6 percent).
That focus on allegations against unions has sharpened in fiscal year 2019. Based on stats through the first four months of that year, the GC’s office is on pace to reverse three dismissals of charges against employers (0.4 percent) and 21 dismissals of charges against unions (3.7 percent).
GC Switch: Meisburg to Solomon
Robb’s redirection of the appeals process represents a more pronounced change than when the Obama administration’s Democratic general-counsel appointee succeeded the Republican chosen by the Bush administration.
Lafe Solomon took the GC reins from Ronald Meisburg about three-quarters of the way through fiscal year 2010.
During fiscal year 2009 the office revived 15 cases against employers (1.4 percent of those reviewed) and 10 cases against unions (1.4 percent of cases reviewed). For fiscal year 2010, the count was 22 cases against employers (1.9 percent) and seven cases against unions (0.9 percent).
With Solomon in control for all of fiscal year 2011, the GC’s office reversed 19 regional director dismissals of charges against employers (1.5 percent) and three cases against unions (0.4 percent).
Disrupting NLRB Tradition
Reorienting the general counsel’s office to pay more attention to allegations of union wrongdoing fits with Robb’s reputation as a disruptor who wants to change the way the agency operates. He came to the agency with plans to shift authority from regional offices to NLRB headquarters and revamp case handling procedures. Robb has largely abandoned those proposals and said that they were just suggestions.
The NLRB has significantly ramped up its scrutiny of communications between unions and their members, interposing itself in a way that can foster distrust in the union-worker relationship, said Kate Swearengen of the union-side law firm Cohen Weiss and Simon.
Union attorney Robert Giolito expressed frustration that Robb seems to prioritize workers who have complaints about their unions rather than those who are trying to unionize the face of illegal conduct by their employers. Just 6.4 percent of the private workforce is unionized, according to the most recent government statistics.
“It’s kind of silly to have the only federal agency that protects workers’ labor rights focusing on that, when it’s doing little to help the 95 percent of workers who might want to unionize,” Giolito said.