Labor Board Officials Have ‘Grave’ Concerns About Restructuring

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By Hassan A. Kanu

The federal labor board’s regional directors are expressing “grave” concerns about a proposal by the agency’s new general counsel to reorganize regional field offices and curb their power, according to a letter obtained by Bloomberg Law.

“You are suggesting very major changes, and we have not heard an explanation of the benefits to be gained from these changes,” a group of National Labor Relations Board regional directors wrote in the letter, sent to NLRB General Counsel Peter Robb (R) last week.

Robb, who was appointed by President Donald Trump and became general counsel in late 2016, told the board’s 26 regional directors in a Jan. 11 conference call that he’s considering eliminating a number of regional offices and downgrading the directors from their senior executive positions. The general counsel said he might establish “large Districts” to replace certain on-the-ground field offices, the regional directors said in the letter.

The move would be a major consolidation of the agency’s prosecutorial powers. Although some sources said Robb’s proposals are a response to looming budget cuts, the regional directors wrote in the letter that the general counsel made it clear that he plans to pursue the changes “regardless of budgetary considerations.”

NLRB Chairman Marvin Kaplan (R) told a group of lawyers last week that the five-member labor board will have the final say on any proposed restructuring.

“Given budgetary issues, the General Counsel is assessing the current organizational structure for possible changes and, if warranted, will work with the organization to develop potential plans to be shared publicly,” the board said in an emailed statement to Bloomberg Law Jan. 26. “At this time, no specific plan involving the restructuring of our organization has been developed.”

Democrats Likely to Weigh In

Republicans will regain control of the board if the Senate confirms management attorney John Ring for a currently open seat. The NLRB used a similar majority in the days before former Chairman Philip Miscimarra’s (R) term expired last year to quickly reverse several Obama-era decisions and usher in far-reaching changes that have alarmed many workers’ rights advocates. Robb has already signaled that he’d like to revisit other legal positions taken by his predecessor, Richard Griffin (D).

“I’m generally suspicious of this president’s appointments,” Irwin “Buddy” Cutler Jr., a union-side employment lawyer, told Bloomberg Law. “And I say that not just because he’s going to appoint conservative, pro-business board members and other decision makers, but they—so much of the time—seem to have a pretty radical view of what they’re doing and a view that’s often at odds with the stated goals of agencies they’re leading.”

Randy Johnson, a former senior vice president at the Chamber of Commerce who recently joined Seyfarth Shaw’s lobbying arm, said the matter is being “overplayed.”

“It seems pretty obvious that there was room for more efficiencies,” Johnson said.

A staffer for Democrats on the House labor committee with oversight over the board told Bloomberg Law Jan. 26 that Democrat lawmakers have many questions at this stage and are “curious” as to whether Robb has been in contact with Trump administration officials.

“Given that the board has said it’ll have final approval and that this might be subject to rulemaking, we would expect to be very active in that process,” the staffer said.

Consolidation in Early Stages

Robb serves as the NLRB’s chief prosecutor for unfair labor practice cases under the National Labor Relations Act, a role independent of the board members. He also oversees NLRB field offices.

Regional directors generally have broad authority to review unfair labor practices cases and determine whether those cases move forward. The board has also delegated to regional directors the power to review representation cases, including by conducting union elections and certifying the results.

“The consolidation of regional offices can make it difficult for people who use the board’s services, particularly ordinary workers who need relief from the board and easy access to the board’s offices and investigators,” Cutler said.

Lawyers and former board officials on both sides of the political and union-management divide generally agreed that crucially important relationships between regional officials and local practitioners could be harmed by a plan along the lines Robb described.

“Practitioners on both sides often develop relationships with regional office personnel, which will be more difficult if the office is far away,” Cutler said.

“Region 9, for example, has a lot of employers in the coal industry—in the past more so than now. Board agents and folks in the Cincinnati region have become familiar with the coal industry, how it operates, and the kinds of issues that come up there—that’s an expertise that could very well be lost in a consolidation of regional offices.”

One attorney with the National Right to Work Legal Defense and Education Foundation said he generally supported Robb’s proposal, though he didn’t comment specifically on the central issue of eliminating a number of regional offices.

“Traditional labor law practitioners have views on perceived differences in operations and decision-making biases across regions,” John Raudabaugh said Jan. 26. “Bringing consistency and efficiency is a most appropriate project for General Counsel Robb.”

It would be “very constructive for the general counsel to conduct closed-door meetings with all the regional directors to discuss managerial, administrative, and budgetary issues and concerns,” he added.

The regional directors noted in their letter that the proposal was in a sort of a “preliminary” phase. Kaplan said in a public meeting Jan. 19 that the proposal would need his and the two other members’ approval to go into effect.

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