Trump’s Own NLRB May Doom His Re-election Chances

Andrew Strom

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

In 2016, Donald Trump was able to win Pennsylvania, Michigan, and Wisconsin in part by promising that he would care about the needs of regular working people.  But as 2020 approaches, Trump’s appointees to the National Labor Relations Board are making it much harder for him to run for re-election as the workers’ friend.

Organizing a union through the NLRB has never been easy, but the Board’s recent decision in The Boeing Company, adds another hurdle for no reason except that the employer lobby and Republican politicians asked for it.  The full implications of the decision remain to be seen, but it appears to require workers at large corporations to organize only in mega-units of thousands of workers at a time.  Boeing marks the latest chapter in the Trump Board’s effort to undo the Specialty Healthcare decision issued by the Obama Board.  As soon as the Trump appointees formed a Republican majority on the NLRB, they issued a decision in PCC Structurals overruling Specialty Healthcare.  PCC Structurals was incoherent because it was based on the false premise that Specialty Healthcare had radically overhauled the law on defining appropriate bargaining units.  In fact, eight different Circuit courts had held that Specialty Healthcare was not a material departure from past precedent, but rather was a clarification of an existing standard.  In PCC Structurals, the Board said it was overruling Specialty Healthcare, but it was not overruling any other decisions.  Boeing now creates a new test for determining an appropriate bargaining unit.

The NLRB Regional Director’s decision in Boeing fit comfortably into longstanding NLRB precedent regarding bargaining units.  After a failed attempt to organize all 2,700 production and maintenance workers at Boeing’s North Charleston, South Carolina plant, a smaller group of 178 Flight-Line Readiness Technicians (FRTs) and Flight-Line Readiness Technician Inspectors (FRTIs) petitioned for a separate election.  An election took place in May 2018, and the workers voted 104-65 in favor of representation.  There was nothing unusual about the Regional Director’s decision authorizing the separate unit of FRTs and FRTIs.  First, it made sense to combine these two classifications into a single unit – the two groups meet together every morning to coordinate the day’s activities, the FRTIs watch the work being done by FRTs, they ensure that it’s done properly, and they sign off on each task.  The Regional Director explained that they work in an area that is separated from the rest of the plant by “a two lane road, a fence, an airplane taxiway, and drainage trenches,” and the taxiway is often closed to pedestrian traffic.  They are also paid the same, and they both have the same license – a license that requires at least 18 months of instruction.  Furthermore, the employer assigned them to the same classification in its human resource management system.  And while the FRTs and FRTIs could have formed an appropriate unit with the rest of the production and maintenance workers, it is important to remember that the statute does not require workers to organize in the most appropriate unit, and the Board and the courts have repeatedly explained that there is often more than one appropriate bargaining unit for any group of workers.  As for whether the FRTs and FRTIs should have been allowed to organize in a separate bargaining unit, even the three Trump appointees concede that they “are a group of employees with higher wages and [Airframe & Powerplant] licenses working in a physically separate area that tend to stay in their respective job classifications.”  In fact, as Board Member McFerran pointed out in dissent, at least six of the eight traditional community of interest factors used to decide whether a group of workers may organize separately favored a finding that the combined FRT and FRTI unit was appropriate:  the workers were organized by the employer into a separate classification, they have distinct skills and training, they have distinct job functions, they have minimal contact with other workers, they have distinct terms and conditions of employment, and they have separate front-line supervision.

So how did the Trump appointees justify their decision?  First, they found it “compelling” that the 2,700 production and maintenance workers all work toward producing the same product.  Then, even though 86% of the functions performed by FRTs and FRTIs are distinct to them, the Trump Board found it “significant” that 14 percent of their time was spent doing tasks that were similar to work performed by other employees.  Regarding terms and conditions of employment, the Trump appointees pointed out that the FRTs and FRTIs are subject to the same personnel policies and benefits as the other employees.  But, if the existence of shared personnel policies is decisive, employers could always defeat organizing efforts by sub-groups of employees simply by issuing company-wide employee handbooks.

One especially alarming element of the Boeing case was the role played by Republican elected officials in encouraging the decision.  The South Carolina Attorney General filed a brief arguing that the NLRB Regional Director’s decision “threatens to put South Carolina’s economy in jeopardy” because the State’s low unionization rate is one way South Carolina has been able to attract businesses to the State.  In other words, he urged the NLRB to rule for Boeing in order to make it harder for workers to organize.  If anything, this argument should have tipped the scales in favor of allowing the FRT/FRTI unit because, as this Board has conveniently forgotten, the NLRA states that the policy of the United States is to “encourag[e] the practice and procedure of collective bargaining.”  The Governors of Maine, Kentucky, and Mississippi joined the Governor of South Carolina in filing a separate brief arguing that allowing the 178 FRTs and FRTIs to organize would somehow interfere with the rights of other Boeing production and maintenance workers who had rejected unionization.  The brief is written in thinly disguised code, ending with the assertion that allowing the smaller group of workers to organize “will stunt growth and sow discord in an otherwise unified and stable workforce, thriving in a right-to-work state.”  While the misleading term “right-to-work” technically refers only to laws that allow workers to gain the benefit of union representation without paying any fee to the union, the term is often used as a broader signal to workers and employers that unions are not welcome in the state.

It’s unfortunate that the Trump Board has prevented a group of 178 Boeing workers from organizing, but the Machinists Union, the entire labor movement, and all the Democratic Presidential candidates need to get the word out that this is all part of a Republican effort to rewrite this country’s labor laws to make it even harder for workers to organize at a time when there is growing popular recognition of the important and positive role that unions play in our economy.

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