The following essay is by David E. Leach III, Regional Director for Region 22 of the National Labor Relations Board. It was originally published in the New Jersey Labor and Employment Law Quarterly, a publication of the Labor and Employment Law Section of the New Jersey State Bar Association. The December issue of the publication is currently publicly available and may be read in its entirety here. To learn more about the benefits of joining a section, contact [email protected].
In an executive order signed by President Donald J. Trump on March 13, the president stated that he is seeking “to improve the efficiency, effectiveness, and accountability of the Executive Branch” by planning to reorganize governmental functions and eliminate unnecessary agencies, components of agencies, and agency programs. In furtherance of this executive order, on April 12, Director Mick Mulvaney of the US Office of Management and Budget (OMB) wrote to the National Labor Relations Board (NLRB) headquarters in Washington explaining that due to growing citizen dissatisfaction with the cost and performance of the federal government, President Trump aims “to make government lean, accountable and more efficient” by having all agencies “begin taking immediate actions to achieve near-term workforce reductions and cost savings” and “develop a plan to maximize employee performance.”
The NLRB has been working toward complying with these directives. There has been a cost-cutting committee established with the goal of identifying funds that can be cut from this year’s allocation of $274 million in order to meet the House of Representatives proposed 11 percent reduction in the 2017-2018 budget allocation for the NLRB. There has also been a Space Reduction Committee established that is looking at the NLRB’s rental expenditures.
I am sure you have noticed the proposed closure of several resident offices, such as the one in Anchorage, Alaska, has been seriously considered by the NLRB. Attorney Michael Lotito of the San Francisco office of Littler Mendelson was quoted in a labor article as saying “90 percent of board costs go for rent and salaries, so minimizing space is an important issue.”
The NLRB has taken steps to review its expenditures and method of operation in conducting the work of its field offices with the very real possibility of less funding and fewer employees. I was asked to serve as a member of the NLRB’s Restructuring Committee, which is looking at ways to reorganize the regional case processing procedures so the NLRB could operate with less management, fewer supervisors, and a smaller staff. I was astounded when I realized that just two years ago, the NLRB employed a total of 1,960 employees. As I write this article, there are now slightly less than 1,500 employees. Breaking that number down further, 960 employees are working in the 26 regions, including the various resident and sub-regional offices. A total of 703 of those field employees are professional employees, either field attorneys or field examiners, who are doing the casework. They serve in positions that range from the titles of regional director (RD), regional attorney (RA), and assistant to the regional director (ARD), to supervisors, field attorneys and field examiners, and administrative staff.
It appears, although not yet mandated, that the OMB is looking for an additional reduction of about 200 employees throughout the NLRB. As one might imagine, a decrease in staffing numbers of this magnitude has already made it difficult to timely decide the caseload in the field offices. Regions that are very understaffed already are reporting the serious impact that fewer managerial and professional positions have had on their operations. The NLRB has always been committed to the thorough investigation of every case so that a fair and appropriate decision may be made regarding the merits of the case. All parties are entitled to a decision where all the facts are known and the respective legal arguments are carefully considered.
Some practitioners and members of Congress are pointing to the NLRB’s decreasing caseload. In an article in the Society for Human Resource Management Journal, dated Aug. 16, 2017, written by Allen Smith, several practitioners cite reduced case intake and lower union density as support for severe reductions to the NLRB’s budgetary allotment. In calculating the staffing formula to decide the appropriate number of staff required by a region, the NLRB has for many years used each region’s actual case intake, as supplemented by the number of trials, 10(j) cases, representation case hearings, and elections. These factors differentiate between a routine case and one that requires more resources to complete. I can attest that Region 22 has remained quite busy, as the case intake has remained steady at about 600 unfair labor practice charges each year. Based on the NLRB’s statistical formula, a professional staff of 759.5 full-time equivalent professionals is currently needed, but there are only 703 employees now working in the field professional operations. Therefore, the regions are currently significantly understaffed. Assuming that an additional loss of another 100 field professionals was mandated, the field operations would then be understaffed by more than 20 percent.
Region 22 has remained relatively healthy in regard to staffing levels, and we still operate with a fairly traditional NLRB office structure with a RD, RA, ARD, and three supervisors, although we were not permitted to replace retired Deputy Regional Attorney Dorothy Foley. Other regions are in far worse shape. There are nine offices with no RA or ARD, and many offices with several fewer supervisors. In Boston, for example, due to upcoming retirements in the next five months, there will be no RA or ARD and only two of five supervisors, and their RD is being transferred to Region 2 in New York. The impact on these regions has been palpable. A study of the impact of fewer managers and supervisors in those affected offices was done by the NLRB’s Restructuring Committee, and the results uniformly show significant delays in case processing and a declining staff morale.
While I, and my fellow committee members, grapple with ideas to streamline operations, no one is confident that the practicing bar will be happy with the results. I can foresee the possibility of lengthy delays in concluding investigations. That will surely have an impact on the quality of the decision making process. In the already understaffed regions, we are hearing reports that cases are still being decided as quickly as possible, but there are serious concerns that fewer voices in the decisional process will ultimately impact the quality of the decisions.
I was a guest of Chairman Philip Miscimarra at a program sponsored by Cornell University in July. Chairman Miscimarra discussed his efforts, in conjunction with General Counsel Richard Griffin, to convince OMB that the cuts proposed for the NLRB are too drastic and that the proper enforcement of the National Labor Relations Act needs proper staffing in the field offices. He urged all practitioners there to contact their representatives in Congress, people in the administration, and OMB, and explain that the NLRB is already lean and needs to be funded adequately. I join Chairman Miscimarra in urging all New Jersey labor practitioners to follow his recommendation and speak up on the funding of the NLRB. It will benefit your clients, who deserve to have their cases, whether they are the employer or labor, decided only after all the facts are known and the case is fully analyzed and evaluated.