NLRB Declines Jurisdiction Over Democratic Presidential Campaign

I earlier wrote about how various contenders for the Democratic Party nomination for President were wooing organized labor, and how the campaign organizations needed to be mindful that they were themselves “employers” under various federal labor laws. That first blog post noted that several of the campaigns had voluntarily recognized a variety of labor organizations as the exclusive bargaining representative of certain employees of the corporate entity which is the official “campaign” organization.

I also noted in that first blog post that an unfair labor practice charge had been filed by an individual against the employer, “Bernie Sanders for President 2020,” 401 SW 8th Street Suite 423, Des Moines, Iowa 50309. The NLRB’s docket page for Case Number 25-CA-245250 lists a number of allegations, including an illegal discharge and illegal interrogation of employees. Because I was not aware of it, I did not mention in that blog post a separate unfair labor practice which had been filed against Warren for President, Inc. According to the NLRB’s online docket for Case Number 01-CA-246521, the charge was filed on August 13, 2019, and alleged that the Warren campaign maintained work rules that prohibit employees from discussing wages, hours, or other terms and conditions of employment. In its earlier decision in The Boeing Company, announcing new standards for evaluating facially neutral work rules, a rule which would prohibit discussing wages, hours and other terms and conditions of employment was given as an example of “Category 3” per se unlawful rule.

On November 1, 2019, Patricia K. Nachand, Regional Director for NLRB Region 25, sent a letter in the Sanders case, informing the unidentified charging party that Director Nachand had, “decided to dismiss your charge because formal proceedings will not effectuate the purposes of the Act.” On November 6, 2019, Paul J. Murphy, Acting Regional Director for NLRB Region 1, sent a letter in the Warren case,  informing the individual charging party that, “I have decided to dismiss your charge because formal proceedings will not effectuate the purposes of the Act.”

Each of the letters has the sentences:
 

• “The General Counsel has unreviewable discretion to determine whether to issue a complaint on unfair labor practice charges, and he has decided not to prosecute this case involving a presidential election committee.”

But, of course, “you may appeal my decision to the General Counsel.” Almost 45 years ago, in NLRB v. Sears, Roebuck & Co., the Supreme Court explained in great detail the process used by the NLRB’s Office of General Counsel relating to Advice Memoranda:

Under the procedures employed by the General Counsel, Advice and Appeals Memoranda are communicated to the Regional Director after the General Counsel, through his Advice and Appeals Branches, has decided whether or not to issue a complaint; and represent an explanation to the Regional Director of a legal or policy decision already adopted by the General Counsel.

While the letter appears to say that the Regional Director decided, I read the two letters as each Regional Director accurately saying the General Counsel has already decided. Is one going to appeal a decision dictated by the General Counsel to the General Counsel? If one were to appeal, I have no doubt the rubber stamp has been inked and will be used, “after due consideration.”
 

• “The General Counsel noted the Board has never held that presidential election committees fall within its jurisdiction due to the minimal impact on interstate commerce because of their unique and finite nature.”

Of course, if the General Counsel doesn’t issue a complaint, no proceeding is ever going to reach the Board for decision, and thus no reviewing court will ever consider the jurisdictional question.

I assume that the use of the phrase “presidential election committee” was intentional. The respondent in both of the charges discussed above was a corporation, incorporated under the laws of a state.

On the NLRB’s web site where jurisdictional standards are discussed, there is no mention of an exclusion of “presidential election committees.” What did the General Counsel look to or at in determining why the Board itself has never held that presidential election committees are within the agency’s jurisdiction? I live and work in Iowa, and have since Jimmy Carter “won” the Iowa caucuses and launched them into national prominence. I invite you to talk to the various media outlets on “advertising buys,” to various office / living space rental entities on how much money is spent on those, to providers of instrumentalities of interstate commerce (e.g., internet connections, electrical power, etc.) on the income presidential election committees spend. “Minimal impact” on interstate commerce?

And is “finite nature”some new test? One is exempt from the NLRA if you set up a business that you intend will be out of business in a specific period of time? The 2020 presidential election is November 3, 2020. The Iowa Secretary of State’s web site informs one that “Bernie 2020 Inc.” is a Vermont corporation established on February 19, 2019, which was authorized to transact business in Iowa on March 11, 2019. The same source states that Warren for President, Inc. is a Massachusetts corporation, established December 17, 2018, and authorized to do business in Iowa on March 7, 2019.
 

• “In addition, the General Counsel asserts that the prosecution of a presidential election committee, which is so entwined with political speech protected by the Constitution, could raise serious First Amendment considerations.”

This one just escapes me. While, again, the phrase “presidential election committee” is used, each of the respondents is a corporation, incorporated under a state’s law. So are there gradations in a “person’s” First Amendment rights? The facts that virtually identical language used in both letters in explaining the decision not to issue a complaint, and that the language refers to the General Counsel not the Regional Director, leads me to infer that someone was given “Advice.” The last date for an appeal of the decision to dismiss the underlying unfair labor practice charge was November 20, 2019. In the 1975 Sears, Roebuck case, the Supreme Court ruled that Advice Memoranda directing dismissal of a charge  are required to be publicly released. If my inference is correct that there is an Advice Memorandum in the background, I look forward to reading it to see if some more guidance might be provided as to what exactly was going on, and why.

The letter to the charging party in Region 25 regarding Bernie 2020 Inc. said that, based on the rationale explained in the letter, “I am refusing to issue [sic] complaint in this matter.” The letter from the Boston Regional Director differed: “I am dismissing your charge.” Those are two different notions.

I do need to retract or modify the theme of my first blog post on this general topic: The Democratic candidates for President of the United States can now tell organized labor that “my corporate campaign committee is not subject to the National Labor Relations Act.” And their campaigns can violate federal labor laws with impunity. That said, the political flak from an NLRB complaint (issued by a General Counsel from one party) against the corporate campaign committee of a presidential candidate from the other party would no doubt have media buzzing.