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Trump's NLRB: Ties Hands of Investigators

Union-buster Peter Robb is changing what evidence can be collected and allowing bosses to coerce witnesses

Kris LaGrange's picture
Jun 19, 2020

National Labor Relations Board (NLRB) chief counsel Peter Robb has announced some new rules to further constrain investigators at the NLRB. Robb, who has a long history of fighting against union workers, sent a memo to regional directors this week outlining the changes.

The new guidelines will prohibit investigators from receiving information that was obtained in violation of the Federal Wiretap Act and it will require staffers to inform potential whistleblowers that by obtaining this information they could be investigated and prosecuted. They are also required to tell whistleblowers that they could face both internal and legal charges from the employer if they hand over information that was obtained in violation of the Federal Wiretap Act. This is a major change in policy for the agency that has accepted evidence for decades that may have been “illegally” obtained. This is because there was an institutional interest in going after bad employers and protecting whistleblowers. Evidence will still be collected if it was obtained in accordance with federal law, but in violation of state wiretap laws or in violation of a company’s internal policy. For example, under federal law, only one party needs to consent to be taped, but in 12 states both parties need to consent. So the NLRB would continue to accept evidence from a worker in those states even if both parties didn't consent to the recording.

These changes come after Robb decided earlier in his tenure to limit things like the use of investigative subpoenas. Staffers have said that Robb’s moves have limited their ability to carry out the NLRB’s mission.

“The biggest concern is that they’re taking our tools away and hamstringing us,” said one of the NLRB staffers. “This rises very much in the context of the agency first taking away our ability to use investigative subpoenas.”

Two staffers and former NLRB Chairman Mark Gaston Pearce told Bloomberg that this move is intended to give employers the advantage when allegations are made. The vast majority of complaints before the NLRB are against businesses. In 2019, 789 complaints were filed against businesses while just 132 were filed against unions. The NLRB oversees elections to form or disband a union and prosecutes unfair labor practice charges against companies and unions.

Robb also included in his memo a directive for board agents to allow employers to be present if a former supervisor who took a did something illegal, like firing someone for organizing, is testifying.. This is a huge extension of access for bosses and will help to create a coercive environment that is meant to discourage people from coming forward with complaints about illegal activity and allows bosses to pressure both complainants and witnesses.

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