07.24.18

By: Hassan Kanu
Source: Bloomberg Law

Dems, Staffers Concerned Labor Board Buyouts Could Undermine Agency

Staffers inside the federal labor board and some Democrats on Capitol Hill are concerned that President Donald Trump’s appointees are working to slim down the agency to a level that would significantly hinder its ability to perform its mission.

The concern isn’t new. But worker advocates and National Labor Relations Board employee representatives say they suspect the labor board’s top prosecutor shifted away from earlier reorganization proposals, possibly in response to a barrage of criticism from board employees, worker advocacy groups and Democrat politicians. A new plan to offer staffers buyouts and early retirement package, however, will have the same effect of limiting the government’s capacity to stop or correct unfair workplace practices and oversee unionization elections, they say.

“As you explained in your briefing to me in June, although you have no plans to restructure the NLRB’s Regional Offices, the Board did authorize $9 million” for you “to solicit early retirement or voluntary separation from nearly 10 percent” of the staff, Rep. Bobby Scott (D-Va.) wrote in a July 18 letter to General Counsel Peter Robb (R) obtained by Bloomberg Law.

Scott is a ranking member of the House Committee on Education and the Workforce, which has oversight authority over the NLRB. His letter notes that the two Democrats on the five-member board voted against authorizing the buyouts and early retirement packages, reviving his and other lawmakers’ concerns about Robb’s proposals.

The general counsel has denied having any “plans” for the agency, other than just ideas for consideration. The board also justified some of its proposals by citing the agency’s caseload, which has been on the decline for a number of years. Robb declined to comment and hasn’t formally responded to the letter.

Employee union representatives and staffers throughout the agency, including senior career officials say they are worried about access to the agency’s services for the business and union lawyers, as well as individual workers who file labor complaints at the NLRB’s 26 regional offices. They’re also concerned about their own job security and workloads. Staffing cuts and buyouts have been proposed by earlier boards, including the preceding Democratic one, but NLRB insiders say the current situation is distinct.

“What’s different this time is that there seems to be an effort to actually gut people’s ability to bring charges,” one senior career official at NLRB headquarters told Bloomberg Law on the condition of anonymity. “We’ve never seen something like that before.”

Board Chairman John Ring (R) denied the characterization in a July 23 e-mail to Bloomberg law.

“There is absolutely no effort to hobble or in any way undermine the Agency’s mission, and any assertions that we are doing so are absurd,” Ring said. “Every member of the Board and the General Counsel have the utmost respect for the mission of the Agency and are committed to carrying that forward.”

Labor Board Official: Cuts Could ‘Hobble’ Agency

Republicans in Congress—who often criticized the Obama-era NLRB as an activist board that favored workers and disadvantaged businesses and entrepreneurs—have supported the latest proposals.

“The Committee sees the restructuring plans as something the General Counsel has the authority to do,” a spokeswoman for Workforce Committee Republicans told Bloomberg Law in an e-mail. “It’s the Committee’s ongoing priority to make sure all government agencies, including the NLRB, are run efficiently and effectively and we’re following these plans closely.”

Robb has been authorized by the board’s majority members to cut roughly 110 employees in field offices and about 15 at headquarters, according to Scott’s letter.

The board told Bloomberg Law it’s received approval to make early retirement offers, although the request to offer buyouts to employees of up to $25,000 hasn’t yet received an OK from the government’s budget watchdog agencies. The offers will be targeted to particular regional offices and certain positions, according to Democratic congressional staffers.

Congress hasn’t increased the board’s funding in five years—an effective cut in real dollars because costs increase every year.

“The way this was dealt with in the past has primarily been through voluntary personnel attrition,” Ring said. “As a result, we now have regional offices where we need Agency employees to carry out the mission, and overstaffing in certain categories of employees in other regional offices.”

“Given the budget situation, unless we deal with reality and right-size the overall staffing based on the actual budget and case load, the mission of the Agency will truly suffer in the long-term,” the chairman added.

A Bloomberg Law review of NLRB data shows the agency’s caseloads have generally been steadily declining. The board had an intake of 23,863 cases in FY 2016, which was an increase of about a 1,000 compared to the previous year but is a decrease of more than one-third when compared with FY 2001. Union representation petitions are down by half compared with FY 2001.

But union officials say the caseload justification doesn’t quite add up.

“The numbers don’t warrant that,” Burt Pearlstone, president of the NLRB Union, told Bloomberg Law.

“Between 2014 and 2017, you’ll see casehandling numbers nationwide went down—but you also see field staffing numbers went down at an even steeper rate, so we’re still basically in the hole,” Pearlstone said.

The agency has already cut “nearly 20% of its field staff” in the last 5 years, “far outpacing any drop in caseload during that time,” a regional union official who spoke on condition of anonymity told Bloomberg Law.

The NLRB didn’t respond to a Bloomberg Law inquiry on how many new hires or vacancies have been filled since Robb came on.

The senior career official agreed that restructuring or cutting staff at headquarters wouldn’t limit customer accessibility because the overwhelming bulk of the agency’s work occurs outside Washington. But other components of the buyouts remain concerning, the official said.

“What would hobble customer service and accessibility are the proposed changes to the Field offices [where] 90% of the work occurs,” the senior career official said. 

Reorganization by a Different Name?

One Democrat staffer on the Workforce Committee told Bloomberg Law there’s “reason to believe” the two dissenting board members have the same view as other NLRB employees and outside worker advocates—that “this is just a restructuring by a different name.”

Those members, Mark Gaston Pearce and Lauren McFerran, didn’t immediately respond to requests for comment.

“The main concern is that this buyouts and early-outs thing is essentially a slower way of accomplishing” the same major reorganization that earlier proposals hinted at, the regional union official said.

The board’s current attrition rate, the hiring stoppage or slow-down, and the buyout incentives will “combine to effectively cut back on our operations,” the representative said. “Ultimately, when you don’t have the bodies to fill offices, a reorganization will happen on its own—you won’t need budgetary justifications, you can just say there’s no one left to staff regional office X or Y.”

But some management attorneys also perceive the reaction as overblown.

“I just don’t get excited about all of these cries of doom and gloom,” Roger King, labor counsel for the management-focused HR Policy Association, told Bloomberg Law. “There’s an institutional commitment for the unions to keep as many positions as possible, so they have an inherent conflict of interest when you try to look at this issue objectively.”

White House Prerogatives

The Trump administration has also proposed consolidating the Departments of Education and Labor and combining the Equal Employment Opportunity Commission with the Office of Federal Contract Compliance Programs. The EPA went through a similar sequence of events under former-administrator Scott Pruitt.

The consolidation ideas stem from a plan to reorganize and shrink federal government services that was spearheaded by Mick Mulvaney—head of the Office of Management and Budget, the agency with final say over the NLRB’s buyout proposal.

“I think it’s not unusual in this administration, broadly, for folks to be thinking of ways to streamline agencies, achieve efficiencies, eliminate redundancies and then act to squeeze as many resources as they can out of the shrinking budget,” James Plunkett, a lawyer at Ogletree Deakins in Washington and former labor policy director at the Chamber of Commerce, told Bloomberg Law.

“If they’re doing this and there’s that sort of response from employers and employees—that their rights are being frustrated as a result of poor staffing—then I would think the board can go back to Congress and make the case to free up some more money,” he said.