The Trump NLRB’s Stealth Blow Against Campus Solidarity


Published November 19th, 2019 - 11.19.1921


The Trump NLRB is receiving comments on its proposed rule to exclude university teaching and research assistants who are also graduate students from the coverage of the National Labor Relations Act.  That proposal has generated a fair amount of media coverage and teaching and research assistants across the country have been organizing to submit comments explaining to the Board how absurd it would be to declare them non-employees.  But last week, without any fanfare, the Board issued a decision in Amnesty Intl. of the USA, Inc. that would mean that other campus employees (at least those without their own union contract) could be fired for coming to the aid of teaching and research assistants if the Board follows through on its threat to deny them employee status.

More than 20 paid staffers at Amnesty International signed a petition in support of the unpaid interns at the organization, urging management to provide compensation for these individuals.  Amnesty’s Executive Director told the workers who signed the petition that she was “disappointed” in them, and she later told one of the workers that she didn’t think the petition was “appropriate.”  The three-Member NLRB panel unanimously agreed that the Executive Director’s comments were not coercive, and thus, Board Member McFerran pointed out that there was no need to decide any other issue.  But, as the Trump appointees have done repeatedly, they once again reached out to issue an anti-worker ruling on a question that the parties in the case did not even raise.

The two Trump appointees on the panel – John Ring and Marvin Kaplan – ruled that because the interns were not paid, they are not employees under the NLRA.  They further held that action taken in support of non-employees is not for the employees “mutual aid or protection,” and is therefore not protected by the Act.  This means that it would be lawful for employers to fire workers who participate in this activity.  The implications of this decision for labor relations at university campuses are truly alarming.  If the Board follows through with its proposal to remove the protections of the Act for research and teaching assistants, this ruling means that other workers on campus could be fired if they take any action whatsoever to support the research and teaching assistants, unless they are covered by a union contract that protects them from termination without just cause.

As I have pointed out before, the Trump NLRB decisions are marked by two separate features – they are invariably anti-worker and they typically display shoddy reasoning.  The Amnesty International decision fits within this pattern.  Actually, it’s more accurate to say that there was essentially no reasoning.  Chairman Ring and Member Kaplan simply asserted that “activity advocating only for nonemployees is not for ‘other mutual aid or protection’ within the meaning of Section 7 and accordingly does not qualify for the Act’s protection.”  This sentence was followed by a citation to a single case – Five Star Transportation.  In that case, the Board found that two school bus drivers did not engage in activity protected by the Act when they wrote a letter to the school board urging them not to award a contract to one of the bidders due to concerns about the safety of the school children.  Even if you accept that actions taken out of concern for potential customers do not fall within the Act’s protections, that doesn’t answer the question of whether the Act should protect workers who seek to alter the terms and conditions of those providing unpaid labor to their employer.

In a partial dissent, Board Member McFerran pointed out that the Board had long held that actions taken on behalf of individuals who are not covered by the Act can be for “mutual aid or protection.”  Back in 1942, just a few years after Congress enacted the NLRA, Judge Learned Hand explained why workers are acting for mutual aid or protection when they support a group of non-employees.  In that case, NLRB v. Peter Cailler Kohler Swiss Chocolates Co., a group of workers at a chocolate company took action in support of dairy farmers who supplied the company.  Judge Hand explained that by helping the dairy farmers, the Peter Cailler Kohler workers “might well-believe that the support engendered by that favor might prove as important in future disputes with the chocolate company as the support of other unions.”  In 1968, the Board similarly held that workers at a General Electric plant engaged in activity protected by the Act when they collected funds for striking grape workers even though the grape workers are not considered “employees” under the NLRA.

Until the decision in Amnesty International, the Board has never questioned the holding in either Peter Cailler Kohler or General Electric. Nevertheless, Ring and Kaplan feebly suggested that the cases had been silently overruled by subsequent cases involving different issues.  McFerran accurately described this suggestion as “baseless.”  Ring and Kaplan further insisted that the General Electric case was distinguishable because farm workers have an economic relationship with their employer while the unpaid interns lacked any economic relationship with Amnesty International.  In fact, the Administrative Law Judge had made a finding that the interns performed “various administrative tasks, note-taking, and other functions,” including “attend[ing] Congressional hearings or meetings with coalition partners, report[ing] back on those events and participat[ing] in devising responsive strategies, including drafting articles for publication in print and electronic media.”  In other words, the interns did have an economic relationship with Amnesty International – one where Amnesty received valuable labor and paid nothing in return.

Board Member McFerran also pointed out that in prior cases the Board has properly focused on the potential for work-related solidarity, which can exist even where one group consists of individuals who are not “employees” under the NLRA.  For instance, if the staff at Amnesty International ever went on strike, they would want to make sure that the interns did not undermine the strike by performing their struck work.  The same issue would arise on a university campus where it is not inconceivable that some professors would pressure teaching assistants to help with administrative tasks in the event of a strike by clerical staff.

The Trump Board seems to be on a relentless drive to narrow the protections offered by the NLRA.  This effort consists on the one hand of excluding some groups of workers from the protections of the Act entirely, and on the other hand, narrowing the protections offered to the workers who still remain covered by the Act.  Perhaps the only silver lining is that as this effort focuses on university campuses, it may spur the notoriously low-turnout young voters to show up at the polls in droves next November.

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