Trump’s Labor Board to U.S. Workers: “Shut Up and Work”

Andrew Strom

Andrew Strom is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY.

I recently wrote about how the Trump National Labor Relations Board has allowed employers to fire workers for urging their co-workers to vote for unionization during working time.  On the heels of that decision, the Trump appointees gave employers another tool to silence workers.  Last month, in California Commerce Club, Inc.,the NLRB held that where an employer requires its workers to resolve all employment disputes through individual arbitration, it is lawful for the employer to mandate that “there shall be no disclosure of evidence or award/decision beyond the arbitration proceeding.”  In other words, not only can your employer deprive you of your day in court, but it can prevent you from talking to your co-workers about whether the evidence presented at the arbitration hearing justified the arbitrator’s decision.

The volume of anti-worker decisions coming out of the Trump Labor Board has been so great that each new decision barely generates any media coverage.  Of course, one reason the California Commerce Club decision did not attract attention is that there was no dissent to highlight the majority’s shoddy reasoning.  Moreover, there was no lawyer arguing the opposing side.  The charge in this case was filed by an unrepresented individual.  Typically, when the NLRB finds probable cause that a charge has merit, the NLRB’s General Counsel assigns a lawyer to argue on behalf of the charging party.  But, Peter Robb, the Trump appointee who is now General Counsel, switched sides and argued that the employer’s rule did not violate the law.  An agency that cared more about at least the appearance of fairness might have put out a call for amicus briefs so that it could fully consider all counterarguments before issuing yet another anti-worker decision.  But, the Trump appointees on the NLRB probably realize that Trump is unlikely to get a second term, so they are just racing as fast as they can to deliver as many gifts as possible to the Chamber of Commerce.

For a while, Trump’s NLRB appointees were simply taking dissents written by former Board Member Miscimarra, and repackaging them as majority opinions.  But, while Board Member Miscimarra often dissented during the Obama years, even he agreed that rules imposing confidentiality on all arbitration proceedings violate workers’ rights.  In another case raising the same issue, a long-term Administrative Law Judge, Keltner Locke, found that the employer’s confidentiality rule was illegal because the right to discuss conditions of employment “is the essential predicate to all other rights granted by” the National Labor Relations Act.  This should have been an easy case because, as ALJ Locke explained, “if it is a working condition, employees have the legal right to discuss it.”  The Trump Board Members conceded that the confidentiality provision “would prevent an employee from disclosing to coworkers that the employee prevailed in his or her claim, even if the claim involved a workplace issue common to other employees.”  Yet, somehow the Trump appointees decided that the workers’ rights were outweighed by the employer’s interest in enforcing the terms of the arbitration provision.  In reaching this conclusion, the Board relied heavily on the distinction created by Justice Gorsuch in Epic Systems v. Lewis between “things employees just do for themselves in the course of exercising their right to free association in the workplace,” and “the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.”   But, as wrongheaded as this distinction was, the confidentiality provision at issue here does restrict something that employees “just do for themselves” – talking to each other.  In order to get around this, the Trump Board Members made the bizarre distinction between workers “communicating with each other about events, facts, and circumstances they either know about firsthand or have heard about from their colleagues,” and communicating with each other about information they have learned about in an arbitration hearing.  Of course, once evidence is introduced at an arbitration hearing it becomes something that the workers know about firsthand, so the distinction does not even make sense on its own terms.

In the Epic Systems decision, Justice Gorsuch described the issue as whether employees and employers should be “allowed to agree that any dispute between them will be resolved through one-on-one arbitration.”  Justice Ginsburg’s dissent explained how workers have no ability to negotiate the terms of these arbitration agreements.  Instead, they must “accept arbitration on their employer’s terms or give up their jobs.”  But, if courts are going to enforce these mandatory arbitration procedures based on the notion that they are the product of an agreement between employer and employee, then shouldn’t workers at least have the right to share information about their experiences?  A lot of us wouldn’t buy a new vacuum cleaner without first going on-line to find out how well other people thought the vacuum cleaner worked.  The fact that employers insist upon conducting arbitration proceedings under a shroud of secrecy is further evidence that employer-mandated arbitration is a raw deal for workers.  It’s too bad that thanks to Donald Trump, the government agency charged with protecting the rights of workers to engage in “concerted activities for the purpose of … mutual aid and protection” seems to be working overtime to limit the scope of those rights.

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