Opinion

Workers Play Against a Stacked Deck at Trump’s NLRB

By Wilma B. Liebman
February 19, 2020 at 5:00 am ET

In his State of the Union address, President Donald Trump declared that “our agenda is relentlessly pro-worker.”  Relentless, yes. Pro-worker, no. Look no further than the National Labor Relations Board, a federal agency where workers’ rights are being rolled back radically by the Trump administration. 

From the minute it was established during the New Deal, the NLRB has been under siege.  Now, more than 80 years later, there is no one still inside the board with power to defend the statute that protects the right of American workers to improve working conditions by joining together. Since mid-December, the NLRB has been under complete control by Republicans deeply hostile to the law that they are supposed to enforce. With the expiration of the term of the last remaining Democrat, Lauren McFerran, coupled with a year-old vacancy, there is no longer a dissenting voice at the five-member board. And if the past predicts the future, then even worse things are coming for workers and their unions. 

Following the Trump administration’s anti-government playbook, the NLRB has ignored ethics rules, marginalized career staff, reversed decades-old precedent (not just Obama-era decisions), and turned labor law upside down to favor employers. As a former chairman of the board, as well as a long-time dissenter, I know that the absence of any immediate check on the Trump NLRB is a crisis for workers’ rights.

The Trump board’s decisions have excluded workers, such as supposed independent contractors from statutory coverage; narrowed the scope of worker activity that is protected from employer reprisals; made it harder for unions to organize workers in groups of their own choosing and for workers to communicate with each other at work, all while making it easier for employers to oust incumbent unions unilaterally. Decisions have allowed employers to evade collective bargaining and have permitted them to adopt rules that silence victims of sexual harassment and other workplace abuses. Dispensing with notice-and-comment rulemaking completely, the board has gutted an Obama-era rule that reformed the union-election process, instead building in new and unjustified delays. And there is no sign that the Trump board is done yet, as pending rulemakings to diminish worker rights and expand employer power show.

The Trump board’s ambitions could not have been achieved without violating the norms that have long governed federal agencies, including the vital tradition that the board itself will include members from the minority party and that the board will let the public participate in the decision-making process for important cases. To reach issues that it wants to decide (and fulfill management lawyers’ wish lists), it has overruled precedent or ruled on legal questions where no party has even raised the issue. In every instance, where procedural norms were violated, and where precedent was reversed, the board’s decision favored employers.  Management law firms may cheer, but it is inconceivable that under a statute designed to protect workers, the answer could always be to give employers more power.  

Ethics rules have barely slowed the Trump board down, much less prevented it from reshaping the law. In one major case adopting a narrow standard for joint-employer status (companies that share control over a workforce), it reversed a decision still pending on appeal to a federal court.  The Republican majority included a member whose former law firm represented a company in the pending case. After the board’s inspector general and the agency’s top ethics official concluded that the member should have been recused, the board vacated the ruling.

Since then, however, the board has continued to play fast and loose with ethics rules.  To skirt the ethics dilemma on the joint employer issue, it has pursued rulemaking to achieve the same result on the apparent view that less strict ethical standards apply than to adjudication. And it has permitted Republican members to participate in cases despite conflicts of interest, including a high-profile joint-employer case involving McDonald’s and its franchisees. Meanwhile, the board’s chairman, a former management lawyer, initiated a so-called ethics review that concluded (18 months later) that no matter what rules they broke, board members could not be disqualified either by the agency’s ethics officer or by the board itself.

No wonder that workers and their unions avoid bringing cases to an agency stacked against them. And no wonder that proposals to dramatically reform American labor law are gaining currency. See here, here and here. But while bigger, bitter political battles may distract attention, it is a mistake to overlook what is happening at the NLRB and other Trump-dominated agencies, which have a lasting impact on ordinary Americans and their communities. The Trump board cannot be given free rein to shrink, twist and tear existing law. Shining a light on what is happening at this agency, and ensuring at least minority representation on the board, would be a small step in the right direction.

 

Wilma B. Liebman served as a member of the National Labor Relations Board, appointed by Presidents Clinton and Bush, and named chairman by President Obama (1997-2011).

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