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Labor Board Asks to Keep Future Unspent Funds: Top Lawyer (1)

Nov. 8, 2019, 5:32 PMUpdated: Nov. 12, 2019, 5:16 PM

The federal labor board sought the authority to hold onto money that it doesn’t spend at the end of the year, shortly after the board had to return a $5.7 million surplus, General Counsel Peter Robb said.

The National Labor Relations Board didn’t plan on leaving so much money unspent at the end of the last two fiscal years, Robb said during a session at the American Bar Association’s Labor and Employment Law Conference in New Orleans. Typically, the agency leaves between $500,000 and $1 million in annual discretionary funding unspent to make sure it doesn’t go over budget, he said.

The surplus at the end of fiscal year 2019 was the result of several contracts that were either canceled or came in under budget, Robb said. In the prior fiscal year, the NLRB had reserved money to pay for more than 100 early retirements that the agency offered, but only 30 staffers took them, leading to $2.7 million in leftover funds, he said.

Nevertheless, the agency intends to spend the money it’s appropriated, Robb said.

The NLRB asked the White House Office of Management and Budget for the ability to roll over future unspent funds, an agency spokesman said Nov. 12. The request must be approved by Congress.

The budget surplus was one of many issues Robb addressed during a wide-ranging discussion at the ABA conference. Many of the topics were raised by moderator Jennifer Abruzzo, a former acting NLRB general counsel who’s now a special counsel with the Communication Workers of America.

Robb, the Trump administration’s choice as the NLRB’s top prosecutor, has emerged as a somewhat divisive figure in the labor law community. Critics say he’s prosecuting an anti-union agenda that goes beyond the typical pro-management stances of his Republican predecessors. But some management lawyers say he’s restoring balance to federal labor law after pro-union excesses of the Obama administration.

‘That’s Not Surprising to Me’

Robb addressed the findings of a Bloomberg Law article from May showing that he was on pace in fiscal year 2019 to revive seven times more unfair labor practice cases that were brought against unions than against employers. His stewardship of the agency’s appeals office, which considers challenges to charges dismissed by regional staffers, sharply diverged from former Obama-era General Counsel Richard Griffin.

“Is anyone out there surprised that I would be reversing more cases with charges against unions than my predecessor?” Robb asked the crowd. “That’s not surprising to me.”

Robb said the spike in reversals in cases against unions is largely driven by his view that the board should change the law around the duty of fair representation unions have to their members.

Negligence Defense

Last year, Robb directed regional staffers to pursue charges against unions for negligent behavior that the agency previously viewed as harmless error, such as not returning a worker’s phone calls about a pending grievance. He later refined his position in a subsequent memo.

Unions need evidence to support a defense that such conduct was mere negligence rather than a violation of their duty of fair representation, Robb said during the conference. A call log, for example, would be good evidence, he said.

But unions aren’t absolutely required to have a system in place to track their grievances and related communications with workers, he said.

Beck Notices

Robb and his top deputy also clarified his position on what information a union must provide in a “Beck notice” to show how much a worker would pay in collective bargaining and other fees if they chose not to join, compared to full membership dues.

Those notices are named after the U.S. Supreme Court’s 1984 ruling in CWA v. Beck, which said nonmembers only have to pay unions for their duties as their collective bargaining representatives.

Unions need only show the percentage differences between nonmember fees and full membership dues, said Deputy General Counsel Alice Stock.

Robb said he advocated for more information on Beck notices to help workers make an informed choice about union membership, not to “straightjacket” unions about how they present the information.

Providing percentages is significantly less burdensome on unions than calculating specific amounts for each worker, said Abruzzo, the CWA attorney on the panel.

After Robb and Stock said percentages were acceptable on Beck notices, Abruzzo said to the audience, “You’ve heard it here, guys.”

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com