This holiday season, President Trump is doling out lumps of coal for workers (and not the clean kind either).
In his first year as president, Trump appointed two new members on the National Labor Relations Board, giving the board its first pro-business majority in eight years. By the end of September the Senate had confirmed the appointments of Marvin Kaplan, a Republican lawyer, and William Emmanuel, a corporate labor lawyer. However, nobody expected the new board to take much action until after the NLRB’s Chairman, Philip A. Miscimarra, retired in mid-December and Trump replaced him.
But Trump’s federal labor agency pulled off a Christmas miracle. As all eyes were on the fate of the Republicans’ $1.5 trillion tax cut package and Miscimarra on his way out the door on Saturday, the board released a flurry of decisions within 48 hours late last week that overturned a number of pro-worker precedents set by the Obama board.
Most notably, the board overturned the new joint employer standard that aimed to increase corporate accountability for labor practices at its franchises and chains. Labor activists with Fight for 15 saw the standard as the key to its fast-food unionization campaign. Businesses like McDonald’s and their affiliated lobbying groups, like the National Restaurant Association and International Franchise Association, on the other hand, made that standard their top target ever since the initial ruling came out in 2015. Indeed, House Republicans passed a bill in November that would overturn the standard, just in case the NLRB didn’t move fast enough.
But the board moved. It also did away with an Obama-era decision that made it easier for workers to form small so-called “micro unit” unions within larger workforces. That prior ruling had, for instance, allowed the United Auto Workers to gain a foothold in the Volkswagen factory in Chattanooga, Tennessee, unionizing a sub-group of the workers there. Trump’s board also issued decisions that critics say will make it easier for companies to change working conditions without first bargaining over the changes with the union, and for employers to enact rules that chill workers’ collective action.
The rapid-fire action has sparked outcry from labor advocates as well as current and former Democratic members, who argue that Miscimarra’s spree on his way out debases the NLRB’s norms.
“It is very unusual for those big cases to roll out quickly, unless Miscimarra had the decisions ready for new board members to sign and they just signed them,” says Wilma Liebman, a former Democratic appointee who had served as the board’s chair. “Obviously there wasn’t a whole lot of deliberation. [Trump’s appointees] came in predisposed to oppose [the Obama-era rulings].”
Lauren McFerran, one of the two Democratic members currently on the board, accused the new majority of using an inappropriate case to overturn the joint employer standard, and that the majority opinion resembled a “cut-&-paste” of Miscmimarra’s prior dissent on the matter.
Majority overrules BFI joint-employer standard in inappropriate case using cut-&-paste of old Miscimarra opinion. Dissent says: majority violates “longstanding agency norms…of public participation”; new test “cannot be reconciled” with common law, undermines Act. #NLRB #Hy-Brand
— Lauren McFerran (@NLRBMcFerran) December 14, 2017
NLRB watchers speculate that there could be a few more decisions made before Miscimarra left that could trickle out this week, since it can take a while before opinions are made public.
Trump is expected to nominate Miscimarra’s replacement soon—the top pick is reportedly John Ring, a lawyer with Morgan Lewis, one of the biggest corporate labor law firms in the country. This would only continue Trump’s preference for stocking labor agencies with friends of big business. Democratic Senators pressured William Emmanuel, who came from the corporate law giant Littler Mendelson, to release a list of the companies he’s been employed by. Emmanuel, who specialized in union avoidance tactics, listed more than 150 companies as former clients, including major union-resistant corporations like FedEx, Uber, Target, Nissan, and Amazon.
Peter Robb, who recently took over as the NLRB’s general counsel, was also a longtime union avoidance lawyer. Earlier this month, Robb issued a sweeping memo to NLRB officials around the country that essentially put a freeze on all the worker rights expanded through decisions from the Obama NLRB. The board also took the first step in overturning a rule that shortened the union election process, which afforded employers less time for to pressure their workers. Once the full Republican majority is restored, expect a panoply of pro-business decisions to start coming out.
Last week’s rapid-fire succession of action highlights the decidedly anti-worker priorities of the Trump administration—whether it’s through the deregulation of health and safety laws, undermining overtime pay, letting employers pocket workers’ tips, bestowing on employers a wide range of tax cuts, or deconstructing, piece-by-piece, the body of labor laws that aim to help workers.
But it also underscores the inherently flimsy vehicle that the NLRB has become for advancing pro-worker policy. As labor historian Nelson Lichtenstein told me a while back, “When Democrats are in power, Republicans try to starve the Department of Labor and NLRB. When they get into power, they don’t want to starve it anymore. They want their people in it.”
“At the NLRB, there is no middle ground. Precedent means nothing,” Lichtenstein added. “It totally switches back and forth now.”
As such, the agency has become an entirely undependable venue for advancing lasting reforms that bolster workers’ right to organize. Piecemeal advances by Democratic NLRBs are not enough to counter the GOP’s sophisticated and multifaceted attack on labor rights. Plans to completely revamp the National Labor Relations Act, as the Senate Democrats’ outlined as part of their “Better Deal,” are certainly a start. But in reality, they’re probably too little, too late.
The odds of getting back to a point where organized labor represented a meaningful counterweight to American business looks increasingly impossible absent radical changes to our politics—and Trump’s NLRB is certainly not helping matters.
