Labor Board Considers Case-Processing Revamp

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By Hassan A. Kanu

The federal labor board’s top lawyers are floating a series of proposals to revamp case processing. The proposals already have worker advocates alarmed about whether the agency will continue to investigate and prosecute allegations of illegal employment actions with the same vigor as the Obama-era board.

National Labor Relations Board General Counsel Peter Robb (R) is considering a long series of changes to board procedures, according to a Jan. 29 “case processing memo” to regional officials obtained by Bloomberg Law.

The proposals include shortening the time allotted to investigate a complaint and strict time limits on how soon parties must respond to certain requests before dismissal. The list also includes suggestions for “Team Dismissals, Settlement and Withdrawal,” which would allow an investigator and supervisor to independently dismiss cases, approve informal settlements, or withdraw a union’s complaint of an unfair labor practice.

Presently, those decisions require further approval by a more experienced regional director who heads the investigator and supervisor’s field office.

Worker advocates speaking on condition of anonymity told Bloomberg Law they’re concerned that the proposals may make it harder to move unfair labor practice complaints. Such cases typically involve claims related to workers’ rights to unionize and engage in collective actions to protect their own and co-workers’ rights under the National Labor Relations Act.

Squeezing Out Regional Directors?

Robb, who was appointed last fall by President Donald Trump, has already drawn criticism from Democratic lawmakers and caused alarm among worker rights advocates for moving to revisit a number of Obama-era initiatives that the business community said were overly favorable to employees.

This latest memo comes shortly after Robb made waves by suggesting he might try to overhaul the NLRB’s regional director system.

“It seems to me that the general theme is to squeeze out the regional directors—these reforms seem aimed at removing RD’s from vital decisions on complaint processing,” William Gould, a Stanford Law professor and former NLRB chairman, said Jan. 31 about this latest memo. Gould headed a Democratic-majority board.

The labor board told Bloomberg Law in an e-mailed statement Jan. 31 that Robb “solicited suggestions for improving” case processing soon after joining the agency. “After internal comments have been reviewed, proposed improvements will be submitted for comment to the public, as appropriate,” the agency said.

Just Suggestions?

A message attached to the memo says that it’s a “draft summary of suggestions” compiled collaboratively, and that “unworkable or inappropriate” ideas will be removed.

But Gould said he has doubts about that characterization.

“The combination of these proposals with the earlier discussion about new districts suggest otherwise,” he said. “The proof will be in the pudding, but there’s a very strong implication from both these initiatives that there’s a presumption in favor of these kinds of reforms.”

Marshall Babson, a former Democratic board member appointed by President Ronald Reagan, took a less alarmed tone.

“It’s quite apparent the general counsel and operations are looking for ways to deal with budget constraints and find efficient ways to investigate and handle cases,” he said, adding that lawyers representing both companies and employees favor efficiency at the agency.

“The important thing is to make sure the quality, timeliness, and overall integrity of the investigations process is maintained,” and the agency should “be careful it doesn’t throw out the baby with the bathwater” in attempts to streamline case processing, he said.

Emphasis on Settlements

The memo was issued by Beth Tursell, who heads the NLRB’s operational management division and reports to Robb. Babson told Bloomberg Law that “the initiative certainly wouldn’t have been generated without the input of the general counsel.”

In addition to the proposals above, the NLRB is considering allowing regional offices to drop investigations if a worker, union, or employer filing an unfair labor practice charge fails to respond to inquiries within two days. It also suggests reducing the time allotted for many investigations by two weeks and emphasizes that officials should seek settlements in “all” cases “in lieu of litigation.”

The board said it won’t comment on the content of the memo because it’s “confidential preliminary information.” The document welcomes agency staff to submit comments to Tursell, Robb, or his deputy.

“It remains to be see how many, if any, of these proposals will end up being put in place,” Babson said.

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