Thanks to Donald Trump and Republican Senators, Peter Robb is the General Counsel of the National Labor Relations Board, the most powerful position at the agency.  Robb oversees the hundreds of lawyers and investigators who are charged with protecting the rights of workers “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Robb has tried to undermine these rights at every turn, and in a poorly reasoned memo he issued on the Friday before Labor Day, he announced his intent to make it harder for workers to organize by trying to outlaw provisions that unions and employers have included in voluntary recognition agreements for decades.

Robb’s memo directs agency staff to issue complaints against unions and employers if, during an organizing campaign, an employer agrees (1) to provide the union with a list of employees; (2) to allow the union to meet with workers at the worksite; or (3) that a particular bargaining unit would be appropriate.  Robb also wants to outlaw any discussions between unions and employers about acceptable parameters for a collective bargaining agreement that occur before a union achieves majority status, or even agreements to submit to interest arbitration if the parties are unable to negotiate a first contract.

The Supreme Court once observed that “representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations, and distortions.”  Regardless of the outcome, there can be lasting damage to workers’ morale.  That’s one reason why an employer facing an organizing drive might want to reach an understanding with the union to try to tone down the campaign.  While the NLRA prohibits employers from “contribut[ing] financial or other support” to a labor organization, the term “other support” has to be read in light of a statute designed to “encourage[e] practices fundamental to the friendly adjustment of industrial disputes.” 

Robb’s memo starts with the premise that the current law regarding recognition agreements is “confusing and contradictory.”  But, his evidence that the current standard is “confusing” is paper-thin, and the evidence that it is contradictory is non-existent.  Robb claims that cases where employers have allowed union organizers to solicit authorization cards on company property while supervisors were around have led to inconsistent results. In fact, as explained in one of the cases cited in the memo, the Board has held that the employer acted illegally where supervisors were in a position to see whether workers sign or refuse to sign a union authorization card, but found no violation where supervisors are generally present in a large open space (such as a 170,000 square foot warehouse) while card signing occurs.

Robb is not interested in clarifying the law.  Instead he wants the Board to revisit long-settled issues.  There has never been any question that an employer may allow union organizers on its premises.  The only time access rights have ever been called into question is where an employer grants access to one union while denying access to a rival union, and the remedy in those cases is to give access to the second union, not to deny access to both.  Robb is not suggesting that it should be illegal for an employer to bring in anti-union consultants to address workers on the evils of unionization.  But, if that’s not coercive, it’s hard to understand why it would be coercive for an employer to allow a union representative to address workers about the benefits of unionization. 

The claim that the current law is “contradictory” rests on Robb’s claim that the Board has outlawed actions taken by employers to assist decertification efforts while allowing employers to take the same actions to facilitate union organizing.  Again, the cases do not support this conclusion.  The Board finds that an employer illegally aids decertification efforts when the employer provides more than “ministerial assistance” in support of the decertification effort.  Robb argues that this standard should apply to recognition agreements, and he asserts that providing a union with a list of employees’ names is more than ministerial assistance.  In fact, the Board has repeatedly held that giving employee contact information to a worker who wants to decertify a union is not more than ministerial assistance.  Robb similarly claims that allowing a union to solicit authorization cards on its premises should be illegal because cases have held that permitting solicitation for a decertification campaign is illegal.  But, in each of the cases Robb cites, the employer committed a series of illegal acts to undermine the incumbent union, and the Board considered the efforts to assist the solicitation efforts of anti-union employees in the context of those other illegal acts.  It should be obvious that nothing in the NLRA requires an employer to bar pro- or anti- union solicitation. 

Robb is so determined to try to undermine voluntary recognition agreements that he has announced an intent to issue complaints against unions and employers if they reach an agreement on the scope of the bargaining unit prior to recognition.  Robb claims that this type of agreement “ousts the Board of its authority to determine the unit while at the same time giving the union a deceptive cloak of authority with which to persuasively elicit additional employee support thereby interfering with employee free choice.”  But, if the union files for a Board supervised election, the Board encourages the union and the employer to negotiate an agreement on the scope of the bargaining unit prior to the election.  In fact, the Trump Board justified recent revisions to election procedures by insisting that the new rules would “provide additional opportunity and incentive for parties to reach election agreements.”  

The final issue the memo addresses is pre-recognition bargaining about terms and conditions that would apply if workers choose to unionize.  While it is illegal for an employer to grant exclusive bargaining status to a union that does not represent a majority of employees in a bargaining unit, in 2010 in Dana Corp., the Board held that it was lawful for a union and an employer to reach agreement on parameters for a collective bargaining agreement that would apply in the event a majority of workers authorized the union to represent it.  The Board explained that an agreement establishing parameters for future bargaining in the event workers choose to unionize would neither reasonably lead workers to believe that union recognition was a foregone conclusion nor that opposition to the union was futile.  Robb’s only response is to repeat the phrase “deceptive cloak of authority,” but he fails to explain why workers would be deceived, let alone coerced by knowing in advance a range of terms that would apply if they choose to unionize, or knowing that their employer would be willing to submit to interest arbitration if it could not reach an agreement with the union.

While the memo may be intended to raise questions about the legality of voluntary recognition agreements, its shoddy reasoning does not withstand scrutiny, and serves as yet another reminder of the unique combination of malevolence and incompetence that has been the hallmark of the Trump Administration.