Claims of Labor Violations Against Trump Entities Fell Short

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By Lawrence E. Dubé and Hassan A. Kanu

Donald Trump’s presidential campaign and his businesses did not violate employee rights by maintaining broad employment policies and work rules, according to a memorandum released Feb. 12 by the National Labor Relations Board.

The National Labor Relations Board has held that maintaining overbroad policies and rules may violate the National Labor Relations Act even if they are not actually enforced, but the Division of Advice within the NLRB’s Office of General Counsel concluded a number of circumstances made it inappropriate to issue a complaint against any of the Trump entities.

The Committee to Preserve the Religious Right to Organize, represented by attorneys at Weinberg, Roger and Rosenfeld, filed two unfair labor practice charges alleging that Donald J. Trump for President Inc., the Trump Organization Inc., and dozens of entities that Trump identified on federal campaign disclosure forms, violated the NLRA by requiring employees to sign confidentiality agreements that interfered with employee rights to engage in union activities or concerted activities protected by the act.

Those claims failed to persuade the NLRB’s then-General Counsel Richard F. Griffin (D), however. The memorandum to the board’s New York (Manhattan) regional office was dated Oct. 31, 2017, the last day of Griffin’s four-year term as the agency’s chief legal officer.

Writing for the Division of Advice, Associate General Counsel Jayme L. Sophir said the Trump campaign no longer had any statutory employees by late 2017 and the California committee lacked evidence that the Trump business entities actually applied an overbroad confidentiality to individuals who were employees under the NLRA. The committee also had no connection to any employees of any of the Trump entities named in its charges, Sophir said.

Some of the rules challenged by the committee were lawful, according to Sohpir, and prohibitions on releasing “non-public information” didn’t refer to employees or their conditions of employment. The associate general counsel concluded the charges should be dismissed by regional office.

The regional office dismissed the charges, and the Committee exercised its right to appeal the dismissals to the general counsel’s Office of Appeals in Washington. According to the NLRB’s online docket, the appeal hasn’t yet been decided.

New Charges to Be Filed?

David A. Rosenfeld, who represented the committee, told Bloomberg Law they plan to continue pushing the case. “I’m going to be filing a new charge” with the regional labor board office, saying the Trump entities “reasonably enforced his confidentiality agreement as to Steve Bannon and as to Stormy Daniels,” Rosenfeld said.

“I don’t see confidentiality agreements like this as lawful because it prevents employees from talking about adverse working conditions,” he said.

Weinberg, Roger & Rosenfeld in Alameda, Calif., represented the Committee. Seyfarth Shaw LLP in San Francisco and in-house counsel from the Trump Organization represented the Trump entities.

The case is Trump Corp., NLRB Div. of Advice, Case 02-CA-183801, 2/12/18.

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