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Trump’s Top Labor Lawyer ‘Seeking Pro-Union Findings To Overturn’ - Current NLRB General Counsel ‘Has Issued Negative Directives Focused On Unions’

Published Tuesday, May 7, 2019
by Bloomberg Law
Trump’s Top Labor Lawyer ‘Seeking Pro-Union Findings To Overturn’ - Current NLRB General Counsel ‘Has Issued Negative Directives Focused On Unions’

(WASHINGTON, D.C.) - The National Labor Relations Board’s (NLRB) General Counsel is on pace this fiscal year to revive seven times more Unfair Labor Practice (ULP) 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.

He first made that change in an internal memo in September, tweaked his policy in a publicly-issued directive a month later, and further clarified it in March.

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 Non-Members.

That policy is important in the States without so-called Right-To-Work (for less) Laws that ban Unions from requiring Non-Members to pay “Agency Fees” for non-political 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Unions when they enforce some requirements on Workers who want to withdraw their permission to have dues automatically withdrawn from their paychecks.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 ULP 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 comment.

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 (NLRA).

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.

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