New Orleans It may be hard to remember, but the National Labor Relations Board (NLRB) is supposed to ensure the right of workers to organize and safeguard the stated public policy expounded in the National Labor Relations Act (NLRA), which favors collective bargaining. Under the Trump administration, the NLRB is going out of its way to attack the Act. We are not talking about the usual thrust and jab common to any new administration. Trump’s NLRB and General Counsel are gutting the Act like a fish and then stabbing that knife into the heart of workers, their rights, and their unions.
During the eight years of the Obama administration, the NLRB had the opportunity to recast some contentious issues more favorably for workers and their unions. Progress was made, though less than unions and organizers had hoped to see. Elections were processed more quickly. Employers could not challenge a unit before the election, so they could not run out the clock and extend their campaigns through unnecessary hearings and fake challenges to specific jobs or bargaining unit descriptions. The NLRB made a long overdue and significant update to the determinations for joint employer status, a key issue for franchises and their overlords like McDonalds. Acknowledging joint employer control of the workforce would have finally made the primary, deep-pocketed company responsible for the labor practices of their franchisees. Graduate student unions were allowed to be certified and protected under the Act. Email communications by workers complaining about working conditions and organizing their co-workers were allowed and were protected, concerted activity within workplaces rather than solely company-controlled property, and Facebook rants were protected.
Three years into the Trump term, the NLRB now has three Republican appointees and only one Democratic appointee on the five-member board, and these Obama-era initiatives have either been rolled back already or are under attack. Things will not get better any time soon. The last Democrat’s term concludes at the end of 2019, and it’s unlikely that a new member will be appointed in 2020. That leaves a 3-0 partisan board to steamroll over workers’ rights. The decisions are guaranteed to become worse.
The actions of the Trump NLRB and the proposals of the current General Counsel go to the heart of generations of organizing practices and do so deliberately. For example, the NLRA specifies that “an appropriate bargaining unit” can represent workers. It does not require “a” single unit. But in the recent Boeing case emerging from the efforts to organize their South Carolina plant, the Board ruled against this time-honored definition, blocking the certification of a 178-member unit with the larger Boeing workforce.
Furthermore, the General Counsel Peter B. Robb has also proposed to flip the script on presumption of units in order to proceed more quickly to elections, a move that encourages companies to try to delay elections by challenging the unit and forcing a hearing. He has also proposed a laundry list of reasons an employer can now use to challenge the majority of an incumbent union, forcing it to hold an election to prove its majority.
The General Counsel has also indicated he wants to stop the practice of unions filing charges to block unfair labor practices, known as “blocking” charges – usually actions by the company that taint the election conditions — during campaigns. This proposal is a total union-buster. Instead of allowing the Regional NLRB supervising the election to postpone the voting while it investigates the charge, workers would be forced to vote in the poisoned conditions that the union opposed. The election would proceed and results would be held “in the box.” If the charges were not found meritorious, the election box would be unsealed and the votes counted, presumably to the union and the workers’ peril.
Collective bargaining is also under attack. One of the rock-solid foundations of bargaining prohibits employers from making unilateral changes once an organizing drive has begun. Any unilateral change could be a potential unfair labor practice and could lead to an election objection if it materially impacted the results. Once a union was certified, the ban on unilateral changes meant that the company had to bargain with the union. No more. The NLRB wants to allow employers more leeway, turning upside down the rules governing what bosses can do under management rights. The new rule seems to be “anything goes” for employers.
The NLRB reported another 11% drop in the filing of unfair labor practices in 2018. The General Counsel for the Machinists has reportedly commented that we shouldn’t worry, because a lot of this will go away if Trump wins a second term. Personally, I’m not feeling as secure about that as my brother machinist is. Meanwhile, the Economic Policy Institute has suggested that the NLRB and the General Counsel have been following the work order set by the U. S. Chamber of Commerce point by point.
Does it matter? Yes. However, because nothing better is likely to be legislated anytime soon, we need to hold onto everything we can in the current act.
Many unions and organizers have claimed that the failures to improve the protections of the NLRA are so serious that they are not filing for representation elections before the Board, but the statistics indicate otherwise. 1597 elections were filed in FY18 and another 1588 in FY08. Workers are still organizing under the Act, and that’s a fact.
Like it or not, the NLRA provides both organized and unorganized workers some protections, despite weak and erratic enforcement. In the contemporary workplace, workers need those protections more than ever. The rights that remain are themselves organizing tools.
Published first in the Working Class Perspectives on November 18, 2019