Labor Board Official Parries Criticism on ‘No-Plan’ Plan

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By Hassan A. Kanu

The National Labor Relations Board’s general counsel is standing firm on a series of proposals to restructure the agency starting next year even as concern within the NLRB about the plans is said to have reached a boiling point.

Peter Robb refused to withdraw the proposals per a request from the union representing agency staffers at headquarters in Washington, D.C., according to a letter obtained by Bloomberg Law. Although Congress kept the board’s funding steady this year, Robb noted that the White House budget request for next year is “well below” the current allotment.

“Continued fiscal restraint will, therefore, be required as the Agency examines its current circumstances and evaluates its operations for the coming year,” Robb said.

The White House’s NLRB budget request for next year is still $249 million. That would be about a 9 percent reduction from the $274 million set aside for the board for 2018. But some critics say the Congress refusal to enact a similar cut this year suggests the White House proposal won’t come to fruition.

Robb has fielded a barrage of inquiry letters and meeting requests from Democratic lawmakers, worker advocates and board employees at all levels of the agency since his first few weeks on the job. The general counsel has hinted at a broad agenda to rescind precedents set during the Obama years and revamp how the agency conducts its business of processing labor complaints.

That includes proposals to strip current regional chiefs of their senior status, consolidate offices, and install a handful of supervisors with a direct line to Robb. The general counsel also suggested moves to shorten investigations, emphasize settlements, drop meritless complaints, and impose strict deadlines on workers, unions, and businesses filing labor complaints.

The proposals have caused alarm among Democratic lawmakers, worker advocates and some board insiders, as well as a more public airing of employee grievances than is typical for the agency. Some are concerned that the new, Republican-appointed general counsel took the job with an agenda to implement a range of policies that will consolidate more power in his own position, make it harder for the agency to enforce federal labor law, and favor businesses over workers.

Robb has repeatedly said he has no specific “plans,” and is only considering “suggestions” that came from NLRB employees. He has also repeatedly pointed to White House requests to slash the board’s budget as the reason he’s considering the moves. Robb earlier this year told a group of lawyers in New York that some proposals would update practices that haven’t gotten a fresh look in decades.

Robb and the NLRB didn’t respond to a Bloomberg Law request for comment.

“For some reason, he’s decided that the public position is ‘we don’t have a plan yet,” former Democrat board member Wilma Liebman told Bloomberg Law. “It’s a little bit like Trump—saying ‘all of this is fake news, we’re not doing anything,’ until you actually do it.”

Overreaction?

A number of stakeholders and Democrat observers, as well as many NLRB employees, say the general counsel could be more forthcoming about his vision for the agency. The situation inside the agency appears to have reached a boiling point, according to some.

Unions representing all levels of the NLRB career staff and a group of senior management officials have sent letters to Robb strongly criticizing the proposals and asking for further information. One of the unions said the general counsel is showing an intent to destroy the agency from the inside.

Karen Cook, the president of the NLRB Professional Association—the union representing workers at the board’s headquarters—told Robb in a recent letter that she’s never seen agency workers “more disillusioned and more anxious” than they are now.

“I think there’s an outsize level of paranoia on one side, and maybe there could be better public relations on the other side,” Brian Hayes, a former Republican-appointed board member, told Bloomberg Law April 3.

“It’s not all driven by financial considerations or all a product of a desire to consolidate power,” Hayes, now a management-side attorney, said. “There’s a less partisan, more rational middle ground,” which is that one should be looking to achieve some efficiencies and consistency in running any organization.”

John Raudabaugh, also a former Republican board appointee, agreed generally with Hayes.

“It seems to me that the general counsel not only has the right, but I think it’s excellent to review the day-to-day administration of the agency and be open to ideas, whether directed at cost-savings or efficiency, that’s something to be encouraged,” he said. “And again, until we see any final proposal or recommendation, I think people should keep calm and carry on.”

Raudabaugh is a staff attorney for the National Right to Work Legal Defense Foundation, an organization that fights laws that it says limit workers’ rights to choose not to join a union.

Stakeholders on the left continue to believe the general counsel’s reliance on the budget and expected appropriations as a central justification—as in his latest letter—is disingenuous.

“The president’s budget came out after Congress had reached agreements on spending caps that are completely at odds with it,” Sharon Block, another Democrat former board member, told Bloomberg Law. Block, who is now at Harvard Law School, said the expectation that Congress will adhere to the White House budget next year “is not a serious idea.”

“He seems to be doubling down on the budget rationale, but it just doesn’t ring true that the president’s budget would drive these kinds of changes in a practical sense,” Block said. “If he’s got other reasons, then he should tell people what those reasons are.”

Cost-Savings Enacted; Internal Protest

Some labor board employees have replaced their avatars on internal messaging systems to a picture of the number 274 on a green background, a reference to the board’s $274 million funding allotment and a sort of subtle protest against Robb’s assumed agenda and his budgetary justification.

Adam Naill, legislative director for the NLRBPA, noted that lawmakers also included language in the appropriations bill that limits appointees’ ability to reorganize federal agencies according to Trump’s budget proposal. He said that makes Robb’s latest response citing the 2019 budget problematic.

“In our view, this directly conflicts with language” in the legislation “that directed agencies not to reduce funding for any program or activity as proposed in the President’s budget request for a fiscal year until such proposal is subsequently enacted by Congress,” Naill said in an e-mail.

The union’s letter was also a response to Robb’s shuttering of an agency health unit. That move was recommended by a cost-savings plan—developed before Robb’s tenure—for operating under a lower budget.

“Although the ultimate budget news was better” than “expected, there is little more that can be said on the reasons that had motivated the costs savings proposals and plans,” Robb wrote.

“We want to build a constructive relationship and give the General Counsel the benefit of the doubt, but it is challenging when he maintains inhibitive proposals to centralize case-processing and implement budget cuts even when the avowed justification for those proposals no longer exists, or is contrary to appropriation language,” Cook, the NLRBPA president, told Bloomberg Law via email.

Robb told Cook his door was open anytime in an exchange March 20. But in his letter eight days later, Robb directed the union to take “all future communications and requests” to a designated “exclusive representative for dealing with” the employees’ union.

The union’s leadership called the action unprecedented and said it amounts to shutting the door “to his own employees’ designated representative.”

Controlling Public Narrative

Other previously undisclosed internal communications reveal a general counsel working to maintain control of the public narrative around his alleged agenda and to reassure career staffers worried about their own jobs and benefits, as well as their ability to carry out the agency’s mission.

“Please do not discuss any case processing suggestions or possible restructuring changes when you engage in outreach with the public,” the general counsel wrote in a March 14 e-mail to senior employees. “Please share this information with all individuals who are engaged in Outreach activities.”

Robb also messaged agency workers after another Trump labor board nominee, John Ring, went through his first hearing before Congress, according to the same sources.

“In examining his qualifications to be a Board Member, Senators asked Mr. Ring to comment on ‘plans,’ attributed to General Counsel Robb, that would affect Regional offices and change unfair labor practice case processing,” Robb wrote. “As I have been stating publicly for weeks, I did not announce, and do not have, any plan to organize or re-structure Regional offices.”

Robb reiterated that the case-processing suggestions “came from within the organization” and that employees will “have an opportunity to review and comment on any draft plans or suggestions prior to implementation.”

Union Questions Source of Proposals

Agency workers have questioned the source of the suggestions. The NLRB Union—which represents employees in regional offices—has made attempts to discover the sources among membership, union members told Bloomberg Law.

“With so much opposition at all levels, we can’t help but wonder who the employees he refers to are,” Cook told Bloomberg Law. “We remain concerned that he will unilaterally implement his proposed procedures just as he has begun unilaterally eliminating services like our health unit.”

Liebman, the former Democrat board member, told Bloomberg Law that preparing for possibly lower funding isn’t telling “in and of itself.” The agency had different contingency plans for funding shortfalls during her tenure, Liebman said.

“But I think it’s correct to say the general counsel has said what’s convenient and has contradicted himself,” she said. “There’s not a whole lot of coherence other than that he’s got some agenda.”

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