Since Election Day, unions have lived on borrowed time. The National Labor Relations Board (NLRB), which has exclusive authority over many key questions of labor law, is still controlled by Democrats?—?thus shielding workers and their unions from attacks that became far likelier the moment Donald Trump was declared the winner of the 2016 election.
But this period of interregnum is about to end. Senate Majority Leader Mitch McConnell (R-KY) began the process of confirming the first of Trump’s two nominees to the NLRB on Monday. When both nominees sit on the Board, a swift rollback of union rights is likely.
As soon as this week, the Senate is likely to vote on Marvin Kaplan, the first of these two nominees. A former GOP Hill staffer, Kaplan drafted legislation—strongly supported by business lobby groups—which would have made it easier for employers to fight unionization campaigns.
Trump’s other nominee, William Emanuel, is a veteran management-side lawyer who touts his “particular expertise with laws concerning union access to the private property of employers.” He’s also filed briefs in three cases claiming that employers can force workers to waive their right to bring class actions and similar lawsuits.
The NLRB is an unusual agency that functions very much like a judicial body. It is the only agency that can enforce certain portions of federal labor law, which protects the right to unionize, to engage in collective action within the workplace, and to have one’s employer actually bargain with a union in good faith.
While the NLRB employs lawyers who investigate and prosecute certain violations of labor law, the board members themselves function much like judges?—?sitting on individual cases and handing down precedential opinions interpreting the rights of workers, unions, and employers.
In recent years, however, the Board has grown increasingly partisan. By design, it has five board members, and three of those seats are typically controlled by the party that also controls the White House. For this reason, the Board’s understanding of labor law often lurches to the left and then to the right as control of the presidency changes hands.
During the second Bush administration, for example, the NLRB determined that workers with fairly minimal authority over their co-workers count as “supervisors” under federal labor law?—?and thus do not enjoy a legal right to unionize. The Board’s current Democratic majority, by contrast, appears much less eager to strip employees’ collective bargaining rights by declaring them “supervisors.”
Yet, while partisanship has shaped the NLRB’s decisions for quite a while, if Kaplan and Emanuel are confirmed, the Board will have a Republican majority for the first time in the post-Tea Party, take-no-prisoners era of GOP politics that began shortly after the Obamas moved into the White House.
The new majority on the board is likely to confront, and possibly reverse, a number of Obama-era decisions on important matters such as whether graduate students with significant work responsibilities should be allowed to unionize.
But the GOP’s recent approach to unions suggests that the party will not be satisfied with simply rolling back union rights to where they stood in the Bush era. Last year, the Supreme Court came within a hair of defunding many public sector unions based on an aggressive reading of the First Amendment?—?the suit failed only due to Justice Antonin Scalia’s death, and a similar suit is likely to prevail soon now that Neil Gorsuch occupies Scalia’s seat.
Republican governors like Scott Walker crusaded against unions in their states. Senate Republicans even attempted to shut down the NLRB entirely during the Obama presidency?—?an action that would have rendered much of federal labor law unenforceable?—?by refusing to fill vacancies on the Board.
It is likely, in other words, that the NLRB’s incoming majority will push much harder against the right to organize than even President Bush’s appointees to the Board. They are creatures of a very different era.