Ringing the Alarm at the NLRB

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Published February 6th, 2020 - 02.06.2034


Since the National Labor Relations Board’s takeover by Trump appointees, the NLRB, led by Chairman John Ring, has departed from its mission and historical practice, has issued decisions that fail to adapt labor law to the twenty-first century economy, and has become embroiled in numerous ethics scandals along the way. The results for workers have been dire. Millions of workers have lost (or face the threat of losing) the protections of federal labor law and, as a result, a voice in their workplaces at a time when it is so sorely wanted and needed.

We are two former NLRB employees who have been tracking the Trump NLRB’s every move. While we are deeply saddened by the Trump NLRB’s distortions of the law and destructive management of the agency, we believe it is important both to challenge what we can in the near term and to document what we cannot.

So, what has the Trump NLRB done so far? Since September 2017, when the Trump appointees first constituted a majority, the NLRB has:

  • Explicitly reversed significant and often longstanding precedent in 20 cases—and has requested briefing about whether to change the law in only two of them.
  • Applied its new legal standards retroactively in each of these 20 cases, paying only cursory attention to parties’ reliance interests and ignoring the uncertainty and unfairness that can result when the rules change while cases are pending.
  • Significantly modified or misapplied existing law in over 40 other cases, effectively limiting the reach of decisions that were intended to safeguard workers’ rights and tacitly discouraging regional offices from pursuing cases involving those legal principles.
  • Indicated that one or more Board members would consider reversing additional precedent in 38 other cases, offering what is generally considered to be an invitation for parties to present a case as a vehicle for changing the law.
  • Initiated four rulemaking proceedings (and two that they’ve announced but not yet formally initiated) intended to reverse additional precedent and make it harder for a future Board to dislodge the current majority’s view of the law—all without holding a single hearing to allow public input about the proposed rules and, in one case without notice and comment.

Every single one of these cases and rulemaking proceedings involves a change (or proposed change) that will dispossess workers of their rights to organize and collectively bargain. The Trump Board has not sided with working people or their unions in a single case of consequence to labor and management. These results are directly contrary to the Act’s purpose of “encouraging the practice and procedure of collective bargaining” and “protecting the exercise by workers of full freedom of association, [and] self- organization.” 29 U.S.C. § 151. Specifically, the changes range from making the already difficult process of initiating the union organizing process and voting in favor of union representation even more difficult (in, for example, Boeing, PCC Structurals, and the December 2019 election rule changes), to allowing bosses to wield their property rights as a weapon to undermine the well-established rights of workers to organize in their workplaces (in Kroger, Tobin Center for the Performing Arts, and UPMC), to a frontal attack on the dynamics of collective bargaining itself (in Raytheon and MV Transportation).

The Trump NLRB hasn’t just been destructive of workers’ rights to organize and bargain. It has been recklessly out of touch with the twenty-first century economy. As opposed to recognizing that we now function in a fissured economy with complex service and supply chains, the Trump NLRB has insisted on taking a highly formalistic view of the employer-employee relationship and ignoring power relations in the workplace. This means employers can have it both ways: full control, with none of the accompanying responsibility. The Trump NLRB members have expanded the scope of the independent contractor exception while (attempting to) narrow the definition of joint employer. They’ve tried to strip student workers of their rights to organize by characterizing their work as a “learning experience” rather than recognizing that graduate workers are financially dependent on their income for survival, and that the structure of the modern university is centered around paying student workers to conduct much of its essential work. And, the NLRB has returned to a view of employer email systems that was already technologically outmoded by the mid-2000s for no reason other than to limit workers’ ability to communicate about workplace conditions online.

The Trump NLRB members also seem unable to grasp the importance of the recent struggles for racial, gender, and LGBTQ justice in the workplace. For example, they recently ruled that employers can prohibit workers from talking to each other about sexual harassment in the workplace as part of their investigation protocols. They have also indicated that they are considering changing the standard of protection for worker speech on issues of race in ways that could chill workers from speaking out about all kinds of discrimination in the workplace. And they have issued a number of rulings (for example, Tschiggfrie, Electrolux, and Alstate) that narrow the definition of protected concerted activity and make it easier for employers to nip worker activism in the bud by disciplining or discharging workers who speak up or attempt to protect themselves and their coworkers from unfair conditions on the job.

It is no surprise that Trump appointees who have spent their careers representing the interests of corporate America would fall down on the job of protecting workers. They’ve also led by example by undermining career employees’ rights as federal union members.  Under these appointees’ watch, the NLRB has limited the staff’s use of official time and restricted their use of agency equipment for union-related communications, surpassing the already draconian requirements of Trump’s executive orders (EO 13836 & EO 13837) attacking federal unions.  In addition, these appointees have failed to even follow basic ethics rules, leading to various scandals from which the NLRB is still reeling. Trump NLRB Chairman John Ring attempted to improve the situation by undertaking a full-scale ethics review and issuing a report. But even that effort fell short.  The report, which sets forth a process by which Board members can reject recusal recommendations issued by the agency’s Designated Agency Ethics Officer, was criticized by both the current head of the Office of Government Ethics (appointed by Trump) and its former head (appointed by Obama).

Now that the Board is solely comprised of Trump appointees, it will be even more important to remain vigilant. The Board has already signaled that its relentless push to reverse precedent will continue unabated even without the moderating influence of any dissenting voices (though we look forward to hearing those voices in OnLabor’s new Dissent In Exile feature). We will continue to monitor the NLRB’s decisions and to maintain a record of these appointees’ betrayals of their duty to effectuate the National Labor Relations Act. We are also deeply committed to preparing for what we hope will soon be a different era.

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