Democratic Senators Unhappy With Labor Board Counsel’s Answers

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By Hassan A. Kanu

Democrats on the Senate labor committee believe Peter Robb’s response to their inquiry late last year was inadequate, and they’ve followed up with a second letter to the National Labor Relations Board’s new top prosecutor, committee staffers said.

Sens. Elizabeth Warren (Mass.) and Patty Murray (Wash.), the ranking Democrat on the panel, were displeased with Robb’s answers, the staffers said. They sent the latest, more specific inquiry to Robb Jan 16 asking for more detailed answers. That’s a sign that Democratic lawmakers with oversight of labor issues will continue to scrutinize President Donald Trump’s pick for NLRB general counsel.

“I think the Senators have homed in on the vagueness in the response,” William B. Gould, a Stanford Law professor and former National Labor Relations Board chairman appointed by Bill Clinton, told Bloomberg Law. “They’re really trying to put his feet to the fire.”

The senators’ first letter asked Robb a broad variety of questions about how he would administrate the NLRB general counsel’s office.

Warren and Murray asked about Robb’s views on workplace sexual harassment and asked why he selected certain precedent-setting cases from “the last eight years” for review. The pair also requested that Robb provide any communications between his office and outside parties after Jan. 19 of last year. Robb was nominated in September and confirmed by the Senate via a party-line vote about two months later.

The general counsel noted in his response to the lawmakers that he was a private practice attorney before taking the job at the NLRB. Robb said he communicated generally with “clients and colleagues about Board precedent” but couldn’t “recall any other communications that were not subject to attorney-client privilege.”

The senators followed up in their latest inquiry letter by asking Robb to detail how he made the privilege determinations—including what computer keyword searches he used—and telling him to limit his responses to the period after he was sworn in.

“Please provide this additional information by January 29, 2018,” Warren and Murray wrote.

Republicans on the Senate Health, Education, Labor and Pensions Committee didn’t respond to Bloomberg Law’s request for comment.

A Standoff

Some of Warren and Murray’s questions focused on a controversial memorandum that laid out an agenda of sorts. Robb issued the memo in his first two weeks on the job.

The senators expressed concerns about the timing and Robb’s decision to review precedent-setting cases specifically from the Obama-era board.

The Obama board created “novel theories in many cases,” he said, adding that he hasn’t made any final decisions as to what policies and rules he might reverse or implement.

“The exchange really highlights the process that’s emerged over these past decades, and that’s this kind of fig leaf dance that nominees go through to try to convince the Senate that they have no formed views,” Gould said. “Of course, and I’m sure Mr. Robb is no different from others in this respect, they have very deeply formulated views that were put together prior to their nomination—that’s why they were nominated.”

The former NLRB chairman said Robb’s initial answers to the senators were vague.

Nonetheless, and despite their oversight authority over the NLRB, Warren and Murray appear to have little recourse given that the Senate labor committee still has a Republican majority.

“I assume there’s going to be a kind of standoff here since the Democrats don’t have the votes for a subpoena, and I can’t think of any Republican who would join them,” Gould said. “I think this will probably become a war of press releases and exchanges of letters, and nothing will change unless the Democrats gain control of Congress in November.”

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