The Building Tradesman Newspaper

Friday, January 10, 2020

Zero Dems on Trump's NLRB: 'We are likely to see a continued rollback of workers’ rights'

By Marty Mulcahy, Editor

For the first time in the 85-year history of the National Labor Relations Board, three out of its five members are of one party - Republican. President Trump has so far declined to fill the other two seats, which traditionally are held by members of the party out of power (Democrats).

By tradition (not law), the president appoints members of the opposing political party so that the Board contains three members of the President’s party and two from the opposition, according to Labored Relations: Law, Politics, and the NLRB.

The labor-backed Economic Policy Institute pointed out that Dec. 16 "marked the end of Democratic National Labor Relations Board (NLRB) Member Lauren McFerran’s term. McFerran ended her term offering the lone dissenting voice in the Trump board’s efforts to slow down union elections to give employers more time to campaign against the union, give employers the ability to make unilateral changes without bargaining with their workers’ union, weaken remedies when employers break the law, and more."

Last fall the EPI pointed out that Trump's appointees to the NLRB have already taken action on  every one of the pro-business items on the "wish list" of the U.S. Chamber of Commerce, through a series of decisions, rulemakings and general counsel actions.

The National Labor Relations Board's describes its mission as "an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions."

In practice, when it is controlled by a pro-business, conservative board, the NLRB does anything but "safeguard" employee rights.

The EPI said the Trump NLRB – Trump’s appointees to the National Labor Relations Board and his general counsel – have made various anti-worker rulings:  

Those actions have:

*Allowed employers to keep workers and unions off their property even when they allow groups like the Salvation Army to solicit and fundraise (Kroger Mid-Atlantic, 368 NLRB No. 64)

*Given employers the ability to make unilateral changes in working conditions and circumvent the union (MV Transportation, Inc., 368 NLRB No. 66), or withdraw recognition from the union altogether even if the union still has majority support (Johnson Controls, Inc., 368 NLRB No. 20)

*Given employers the ability to interfere with workers’ choice of which group of co-workers they want to organize and bargain with (PCC Structurals, 365 NLRB No. 160)

*Proposed new rules that would let employers evade their bargaining obligations when they use contract workers.

"It gets worse,"  the EPI says. "The Trump Board has gone even further in weakening workers’ rights than even the Chamber of Commerce has advocated.  The Trump Board has proposed rules undermining the ability of employers to voluntarily recognize a union selected by a majority of employees.  And the Trump Board has proposed to strip students at private colleges and universities of their organizing and bargaining rights when they work for the university in connection with their studies.  The Trump GC has decided that Uber drivers are not employees with rights under the National Labor Relations Act (Advice Memo in Uber Technologies, 4/16/19).  And it goes on and on."

"Unfortunately, things are likely to get worse, not better," the EPI said. "With no Democratic appointee there to provide an alternative or dissenting viewpoint on the Trump board’s actions, we are likely to see a continued rollback of workers’ rights under this bedrock statute that, after all, is supposed to protect workers’ rights."

Lynn Rhinehart, who wrote the report for the EPI, said "the manner and speed with which the Trump Board has eroded workers’ rights is jaw-dropping.  The NLRB’s usual way of announcing new rules is through decisions in cases, and there have been plenty of those.  The Trump appointees have ditched the NLRB’s longstanding practice of seeking amicus briefs from the public when considering whether to reverse precedent.  In at least 12 cases, the Trump Board has reversed precedent without allowing public input – and in all of these cases, the Trump Board weakened workers’ rights."

“Despite the repeated requests my colleagues and I have sent to the White House, President Trump refuses to re-nominate (the Democrat) Ms. McFerran," said Sen. Patty Murray (D-WA), ranking member of the Senate Health, Education, Labor, and Pensions Committee. "And last year, Republicans in the Senate stalled the re-nomination of another exceptionally qualified nominee to the NLRB, Mark Gaston Pearce, by refusing to hold a vote—instead, allowing the seat to remain empty.”

“So now, workers are confronted with a Board made up solely of three Republicans and zero Democrats to serve on this historically bipartisan agency," Murray continued. "This is simply unacceptable. If companies refuse to negotiate fairly with unions fighting for higher wages, better benefits, and safer worker conditions, it is the NLRB that safeguards the labor rights that have helped build our country’s middle class. The NLRB must not become a playing field for partisan politics."