Why Philly's NLRB head was suspended for a month
The union election was close, yet routine. Casting ballots in an employee break room at the ManorCare rehab center in Allentown, certified nursing assistants voted on whether to join a union.
The union election was close, yet routine.
Casting ballots in an employee break room at the ManorCare rehab center in Allentown, certified nursing assistants voted on whether to join a union.
Of the 67 who voted in October, 34 wanted to be represented by the Retail, Wholesale and Department Store Union/United Food and Commercial Workers, 29 did not and four ballots were contested, not enough to change the election's outcome.
But now the election has become something more - a referendum on whether National Labor Relations Board regional director Dennis Walsh, 61, who overruled the employers' objections to the election, was too biased for unions to make a fair decision.
"Look, we can't have an election, where there is a clear case of potential bias," said Atlanta attorney Clifford Nelson, who represents the employer.
A hearing on ManorCare's objections is set for May 25 - in the NLRB's Pittsburgh office, not in the Philadelphia regional office led by Walsh.
In December, Walsh was suspended for a month without pay after the NLRB's Office of Inspector General reported that Walsh's relationship with the Peggy Browning Fund "created the perception" of pro-union bias.
Walsh had no comment.
The fund provides scholarships and fellowships to young lawyers to pursue careers and help achieve "worker rights and workplace justice," its founder, retired Philadelphia attorney Joseph Lurie, said.
"The local union officials and their representatives make a donation, get drinks and dinner and hang out with the decison-maker for the NLRB cases," the inspector general's report said. "Why wouldn't a rank-and-file unit member who filed a duty of fair representation charge or a charged employer perceive that the union officials had some special access to the NLRB process?"
"It's a perfectly reasonable and logical assumption," the report added. "Unfortunately, it is a perception that could taint over half of the charges in Region 4."
Walsh had been active with the fund since its founding in 1997 and became chairman in 2011, but resigned from that position in August.
Lurie had little to say of Walsh. "It's over and done," he said. "Now the jackals out there will feast on it."
Lurie named the fund after his first wife, Margaret "Peggy" Browning, then 46, who died after a two-year battle with cancer.
In 2016, the fund will support 75 summer fellowships at unions and at law firms specializing in labor and employment.
Browning was a member of the National Labor Relations Board, appointed by President Clinton and admired for helping "workers who were beat up on by those who exploited them," Lurie said.
Walsh, who worked with Browning at Spear Wilderman, a union-side law firm here that she co-founded, became Browning's chief counsel at the NLRB.
Before and after his time at Spear Wilderman, Walsh was a career NLRB attorney, working in Philadelphia and Washington, risingfrom field attorney to a member of the NLRB, and appointed for three stints to the top board by U.S. presidents.
In between, Walsh served in other NLRB roles and moved to a sister agency, the Federal Labor Relations Authority, where he was deputy general counsel, before returning to the NLRB to head Region 4, in Philadelphia in 2013.
"I don't see how he can do anything but resign," said Nelson, ManorCare's lawyer. The IG's work "is the most damning report I have ever read on a government official and I've been doing this 40 years."
Nervali Villanueva, 36, of Allentown, a certified nurse assistant at ManorCare and a union supporter, thinks her employer is using the issue. "Our bosses do not respect what we chose," she said.
The union's lawyer, Liz Vladeck, calls Walsh "a dedicated public servant" who "is accepted on both sides. He's not a hack."
In the ManorCare case, both lawyers are from out of town - Vladeck from Cary Kane LLP in New York and Nelson from Constangy, Brooks, Smith & Prophete in Altanta.
Nelson is pursuing a similar case, not as far along, involving nursing assistants and others at Devon Manor in Devon who voted 19 to 11, with three challenged ballots, to join District 1199C of the National Union of Hospital and Health Care Employees.
Members of the city's labor bar for management are mostly silent - a testimony, some said, to the field's collegial nature.
"It raises an eyebrow," said Rick Grimaldi, a management lawyer at Fisher and Phillips, saying that he and others are evaluating whether to reopen cases citing the Walsh suspension.
"It's something any reasonable practitioner has to consider," he said. "It's time. It's cost to the client.
Is Walsh biased?
"I would hope not," he said, "which is why we haven't pulled the trigger."
The issue arose in June when Wally Zimalong, a management lawyer here, wrote to the NLRB and area members of Congress questioning Walsh's role.
So what did he do?
When Walsh became regional director in 2013, he disclosed his involvement with the Peggy Browning Fund to an ethics officer and to the NLRB's Associate General Counsel.
"I have no direct involvement in fundraising; i.e. I do not directly ask anyone for contributions," he wrote, as quoted in the IG report.
On July 13, 2013, his involvement was approved as long as Walsh didn't fundraise or let his name be used on literature seeking contributions.
As it turned out, Walsh received 1,000 emails about the fund on his government account and some included details of donations from individuals, the report said.
Walsh admitted that he talked about fundraising strategy, allowed his name on invitations to fundraisers and used his NLRB title on name tags at networking events. But he thought he was ok as long as he didn't ask directly for money.
After the issue was raised, the NLRB revoked Walsh's permission to chair the Fund's board and asked him to make sure his name and title were removed from literature.