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The front-runner for the general counsel spot at the federal labor board has worked aggressively with anti-union persuaders to help employers avoid labor organizing. That track record is raising some concern among worker advocates.
Peter Robb, the presumptive nominee for the National Labor Relations Board’s top lawyer job, has a record of past work that is likely to get a closer look as he moves forward in the confirmation process. Management attorney Doug Seaton was dropped from the shortlist for a board seat before reports about his work as a union-avoidance consultant surfaced.
Robb is a management-side employment attorney at Downs Rachlin Martin in Vermont and has represented the largest employer association in the elevator and escalator industry for years. The industry is largely unionized. He’s also worked for employers who were trying to avoid unionization, and to remove categories of workers from established unions.
It’s not out of the ordinary for a Republican president to appoint for board positions management attorneys who have fought unions. But Robb’s resume may offer some insight into the kinds of cases he may try to steer to the NLRB, or otherwise decline to take up, if he’s tapped for the position. It’s also causing some alarm in organized labor circles.
“One of the things that strikes me is that this president ran on a very pro-worker platform,” Wilma Liebman, former labor board chairwoman under President Barack Obama, told Bloomberg BNA. “To nominate people to any agencies, and of all agencies the NLRB, who don’t have pro-worker credentials points out the cynicism of that campaign strategy.”
The general counsel position comes with significant power to shape labor law by selecting select cases the board hears and issuing labor complaints against employers and unions. General counsel Richard Griffin (D), who critics say has used the role to tilt the scale for unions, is slated to leave at the end of October.
G. Roger King, senior labor and employment counsel for the HR Policy association, told Bloomberg BNA he’s known Robb professionally for over two decades. He said Robb’s track record isn’t out of the ordinary. King was previously in consideration for the same general counsel position.
Robb is a “very solid labor lawyer with substantial experience representing clients with National Labor Relations Act matters before the agency,” King said. “I think he’s highly qualified and we hope the President formally announces his nomination shortly, and that the Senate act to expeditiously confirm him.”
Robb and his firm declined repeated requests for comments. The White House also declined Bloomberg BNA’s request for comment.
Representatives of the National Restaurant Association, which has backed a number of pro-management appointees in the labor sphere, said they weren’t familiar enough with his work to comment on the matter. Spokespersons at the Chamber of Commerce didn’t respond to a request for comment.
One case involving unionizing efforts at a nuclear plant highlights the work that concerns of some worker advocates. Both Robb and union avoidance consultant Michael Couch were hired to represent the Dominion Nuclear power plant when the International Brotherhood of Electrical Workers tried to organize certain categories of the plant workers in 2014.
Union avoidance consultants, or anti-union persuaders, work to decertify an existing union or thwart a new unionization petition. They are commonly referred to as “union busters.” Robb represented the company as an attorney, while Couch worked as a union avoidance consultant.
The power plant Robb represented used “scorched earth” tactics and delayed an election as much as possible, John Fernandes, business manager for IBEW Local 457 and former president of the New England Utility Council, told Bloomberg BNA. Fernandes said he believes the plant’s strategy was to add more workers to the proposed unit that the union had petitioned to represent to “water down the vote” into “a group that wouldn’t vote to join a union.”
Videos featuring managers explaining why a union isn’t the best option for the employees were sent to the homes of eligible voters.
As the case continued, Robb called enough witnesses during hearings that the union’s lawyer told Fernandes he’d have to cross-examine some himself.
Robb “handled most of the direct examinations and his witnesses were well-schooled in advance—he’d ask one question and they’d go on forever,” Fernandes said. “I was at a disadvantage, not being an attorney, but [the legal fees] would’ve been overwhelming for our local to pay.”
Robb’s efforts resulted in the largest representation hearing NLRB Region 1 ever held, according to his bio on the Downs Rachlin website. Local 457 ultimately lost the election 222-183.
The website contains a blurb that apparently refers to the Dominion Nuclear case. It touts Robb’s work on a case “which had 34-days of hearing over 3 months to resolve 80 contested classifications covering hundreds of employees.” Many labor organizers and pro-worker advocates characterize prolonged hearings as effort by employers to avoid or delay as much as possible the formation of a union.
Dominion Nuclear was successful in its efforts to add over 150 more workers to the union’s original petition, and won the election “more than two years after the day the petition was filed,” the webpage reads.
“We certainly viewed it as union busting—it was a very long case,” Fernandes said. The company “brought in well-known union busters to try to talk to employees” and persuade them against organizing.
The HR Policy Association, a trade organization representing human resource executives at some of the largest employers, said Robb’s work is “standard operating procedure.” It called the argument that a more moderate pick could be made a “a non-starter.”
“These types of representation cases typically involve parties taking adversarial positions and not agreeing on who is eligible to vote,” King said.
“The unions will attempt, for lack of a better word, to gerrymander the vote and employers will take a position as to who they believe should vote, that’s just what happens in those cases,” King said. “Anybody with substantial experience in this field would have been involved at some points in their career in adversarial contested voting unit determinations.”
Robert Matisoff, special counsel at O’Donoghue & O’Donoghue, has known Robb for over 25 years. He represents elevator worker unions and has negotiated many bargaining agreements with Robb on the other side, representing the elevator industry employers.
Matisoff said Robb “has never acted as a union buster, at least within the elevator industry, he’s been a straight shooter,” although he also said that the Dominion case “may be indicative” in some sense.
“He’s a management lawyer to the core—but we’ve been able to have a successful and longstanding bargaining relationship,” Matisoff said.
Still, Liebman said the Trump administration could have sought a more moderate advocate for the position.
“We all know there’s a fine line between lawful conduct and unlawful and coercive cases,” Liebman said. “I assume companies hire people who’ll make the campaign as aggressive as possible up to limits of the law, and I think that’s what Robb is signaling—that he’s got the strategies to help companies resist or delay unionization as long as possible—and that’s a diff kind of practice” from other management-side firms.
Alfred O’Connell, a partner with Pyle Rome in Boston, opposed Robb when he represented another employer in a failed petition to remove a category of workers from a union.
Robb is “a very smart and able lawyer,” he said. “But I have to say, whether he was espousing the positions of his clients or his personal opinions, to propose for general counsel of the labor board someone who has a sense of pride in his ability to delay and obstruct union elections is exceedingly troubling.”
To contact the reporter on this story: Hassan A. Kanu in Washington at email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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