News & Commentary

January 31, 2021

Nikita Rumsey

Nikita Rumsey is a student at Harvard Law School.

President Biden’s recent shake-ups at the NLRB have already begun to bear fruit. Bloomberg reports that the NLRB’s new acting general counsel, Peter Sung Ohr, directed the agency to dismiss a case that his Trump-appointed predecessor, Peter Robb, had initiated to curb unions’ use of neutrality agreements with employers.

Robb had made clear that he wanted cases brought that the general counsel’s office could use to change board law to limit what employers and unions can include in neutrality agreements. According to Robb, such agreements, which typically set terms for aspects of labor organizing campaigns, crossed the line from lawful pre-recognition neutrality agreements into the area of impermissible employer support. As a result, Robb would have sought to use the now-dismissed Seattle case against Embassy Suites and a Unite Here affiliate to make unlawful terms that provide for union solicitation during work hours, union access to employer facilities, the provision of workers’ contact information to unions, as well as certain statements indicating a preference for a particular union.  

Ohr’s office was able to unilaterally withdraw the complaint because the agency had never accused the parties of violating existing board law–rather, the case was really a vehicle for Robb, acting under the general counsel’s wide prosecutorial discretion, to reverse existing case law on neutrality agreements. Ohr’s swift dismissal of the case illustrates the importance of Biden’s decision to fire Robb (as well as Robb’s top deputy) and install a new acting general counsel who, as Jon wrote earlier this week, is committed to “ensur[ing] workers’ fundamental rights of association at the workplace are protected to the fullest extent of the law.”

Meanwhile, Richard Trumka of the AFL-CIO told CNBC that the COVID-19 pandemic may be causing support for labor unions to reach new highs. In a recent poll, Gallup estimated that as of 2020, 65% of all Americans approve of labor unions, and in 2018 MIT found that 48% of nonunion workers would join a union if they could. Trumka noted that the pandemic has amplified public support for unions even more, including in light of unions’ demonstrated ability to secure PPE for essential workers.  

Relatedly, the New York Times noted how health care unions have become powerful voices for workers fighting in the trenches of the ongoing pandemic. Hospitals and other care facilities have been overwhelmed by COVID-19, and as a result, unions representing health care workers have pushed back against what many see as paltry responses by employers and government agencies. As the Times describes it, “[d]ire staff shortages, inadequate and persistent supplies of protective equipment, limited testing for the virus and pressure to work even if they might be sick have left many workers turning to the unions as their only ally.” Across various states, unions like National Nurses United and SEIU have been essential advocates for health care workers in their push for safe staffing levels and adequate PPE. And this increased visibility may be leading to an uptick in union interest in the health care sector. As the Times notes, National Nurses organized seven new bargaining units last year, compared to four the previous year.

Meanwhile, employers have claimed that unions are playing politics. That same Times article reports a hospital consulting firm vice president saying that the unions “have successfully been able to use the pandemic to rebrand those same conflicts [over wages, benefits, staffing, and burnout] as very urgent safety concerns.” But according to one report, more than 3,300 health care workers nationwide have fallen victim to the virus. And another study has suggested that COVID-19 mortality rates are lower in unionized nursing homes. So if “rebranding” urgent health concerns as urgent health concerns saves lives, surely unions should continue to take note of this PR strategy.

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