Under Trump the NLRB Has Gone Completely Rogue
An agency founded to defend workers’ rights is dismantling them just when workers need them most.
By Lynn Rhinehart - THE NATION
Last week, while the country was riveted on the skyrocketing number of Covid-19 cases and trying to make sense of the incoherent response by the Trump administration, a little-known agency continued its steady dismantling of workers’ rights.
The National Labor Relations Board (NLRB) is a New Deal agency established by Congress to implement and enforce the National Labor Relations Act (NLRA), the law giving most private-sector workers the right to join together and take action—whether through forming a formal union or not—to improve their pay, benefits, and working conditions. These rights are more relevant now than ever, as demonstrated by the recent wave of strikes and job actions by health care workers and workers at Amazon, Instacart, Whole Foods, Trader Joe’s, and other companies. Workers have taken to the streets, started petition drives, and made bargaining demands in an effort to get their employers to provide safety equipment and institute other measures to protect them from workplace exposure to the Covid-19. Even before the Covid-19 crisis, worker interest in organizing unions was on the rise, with the percentage of nonunion workers saying they would vote for a union if given the chance up 50 percent from a similar poll 25 years ago.
The board is currently composed of three white male NLRB members and another white male general counsel (prosecutor)—all Republicans, three with careers representing corporations and one as a Republican Capitol Hill staffer. Both Democratic seats are currently vacant. There is nobody currently on the NLRB with experience representing workers or unions. Through these appointees, an agency that is supposed to protect workers’ right to organize has taken the law in exactly the opposite direction.
In decision after decision, the NLRB has stripped workers of their protections under the law, restricted their ability to organize at their workplace, slowed down the union election process to give employers more time to campaign against the union, repealed rules holding employers accountable for their actions, and undermined workers’ bargaining rights. (Disclosure: I co-authored a report detailing these rollbacks with my colleagues at the Economic Policy Institute. See “Unprecedented: The Trump NLRB’s Attack on Workers’ Rights.”) One measure of their impact: As of last October, the Chamber of Commerce was 10 for 10 in getting the board to act on the chamber’s recommended changes to weaken workers’ organizing and bargaining rights.
One of the board’s actions resonates particularly loudly in this moment. Last May, NLRB General Counsel Peter Robb decided that Uber drivers—and presumably other “gig” workers—are not protected by federal labor law because (according to Uber and Robb) they are independent contractors, not employees. As a result, workers who are so vulnerable in this current crisis won’t be protected by the NLRB if they are fired or retaliated against for protesting for better safety on the job.
But the board’s actions over the past three weeks has seen their anti-worker, antiunion bias descend to a whole new level.
First, citing the Covid-19 crisis, the board unilaterally halted all elections by workers seeking to form unions. Thousands of workers who were poised to vote on forming unions had their elections canceled—even though the elections could be held by US mail, whose employees are courageously keeping the Postal Service going.
Then, after claiming that the agency could not run elections for workers who want a union, just last week the NLRB issued new rules to make it harder for workers to form and keep a union. The new rules undermine the long-standing practice of voluntary recognition, by which employers agree to recognize and bargain with a union when a majority of employees sign cards saying they want a union. The board is now requiring these employers to post a notice telling workers they can file a petition and have an election to get rid of the union—the very same union that a majority of workers have just chosen. Separately, the new rules call for running union elections and counting ballots even when charges have been filed alleging that an employer has engaged in illegal unfair labor practices that have tainted the election. In an Orwellian twist, the board calls these new rules, which undermine workers’ ability to form and keep their unions, rules to “Protect Employee Free Choice.”
After the board got called out publicly by worker advocates and a key congressional leader on this double standard—not running elections when workers want them but issuing rules to undermine worker organizing—the board backtracked and announced that it would resume union elections.
The board has so exposed its anti-worker, antiunion bias that many union organizers are doing everything they can to avoid it. Workers will still find ways to join together and take action to improve their jobs. But the board is creating a strong headwind for workers and giving more tools to employers to fight them—the exact opposite of what this agency and this law is supposed to be about.
Sadly, there has been little to no coverage of the board’s rollback of workers’ rights in the major media. Perhaps, as the November elections get closer, candidates will talk about how a president who claims to be on the side of working people has, through his political appointees, gutted key worker protections. The Trump appointees to the NLRB should be removed for neglect of duty and malfeasance. There are only two ways that can happen—through presidential action, or by the voters in November.
Lynn Rhinehart, a Senior Fellow at the Economic Policy Institute, was general counsel of the AFL-CIO until July 2018.