In his State of the Union address this year, President Trump declared that “our agenda is relentlessly pro-worker.” Despite this populist posturing, any sober assessment of Trump’s first term will show that it has been an all-out assault on labor.
Trump has ruthlessly attacked federal workers, granted more tax cuts for the rich, and severely weakened the Occupational Safety and Health Administration, and he is now undermining Social Security. Campaign promises such as massive infrastructure projects, a minimum wage hike, and an overhaul of the health care system have barely even been attempted.
In a few short years, Republicans have used the opportunity presented by a Trump Administration to attack workers in ways we haven’t seen since before the Great Depression. While these seismic shifts in labor relations rarely get highlighted in the media, they should alarm anyone who cares about working people’s basic rights.
Can Workers Still Use the NLRB under Trump?
“The big-picture situation at the agency under Trump is not good,” wrote labor lawyer Gay Semel in the January 2020 issue of Labor Notes. “But in certain situations,” she emphasized, “the Board is still the only place workers can go for legal protection, and workers shouldn’t let the president’s pro-corporate appointees scare them out of ever exercising their rights.”
For advice on when and how to go to the NLRB in the current political climate, see Semel’s article here.
A BOARD OF CORPORATE STOOGES
Actions of the National Labor Relations Board (NLRB) are the most striking example of the anti-worker agenda. The Wagner Act of 1935, the first iteration of the National Labor Relations Act, established the NLRB as an agency to protect workers’ rights to organize and engage in collective bargaining. Trump has rapidly turned an agency designed to serve workers’ interests into another tool of corporate power.
Trump has appointed three Republicans to the board, none of whom has any experience representing workers or unions. In fact, all have long careers defending corporate interests. Between December 2019 and August—when Democrat Lauren McFerran was reconfirmed by the Senate—Trump presided over the first all-Republican Board in the NLRB’s 85-year history.
At the head of the board is the General Counsel, whom workers depend on to actually prosecute cases. Trump’s pick was management lawyer Peter Robb.
The Trump Board has dutifully pursued a corporate wish list of 10 items put out by the Chamber of Commerce in early 2017. Board members have already taken action on all 10. These priorities include delaying union elections, restricting the ability of employees to communicate about workplace issues, and enhancing the ability of employers to determine bargaining units.
We shouldn’t overstate the importance of labor law. Deep organizing and shop floor power are what’s needed to rebuild the labor movement and working people’s ability to fight back. But these laws still make a real difference in shaping the barriers to the revitalization we seek. The NLRB under Trump is on a determined mission to destroy the last vestiges of organized power working people have left.
PRECEDENT OUT THE WINDOW
As Celine McNicholas, Margaret Poydock, and Lynn Rhinehart of the Economic Policy Institute wrote in their October 2019 report “Unprecedented: The Trump NLRB’s Attack on Workers’ Rights”: “The Trump board has repeatedly reversed long-standing board precedent, weakening workers’ rights and giving more power to employers. In the two years that Republicans have held the majority on the board, they have overturned NLRB precedent in more than a dozen cases. All of these decisions overturning precedent favor employers.” In most cases, the Board has issued these types of rulings without even bothering to solicit public input, a reversal of its normal practice.
Take the Board’s ruling in Bexar. Thanks to this ruling, now off-duty employees do not have a right to organize in public areas of their workplace if their employer is a contractor. In this particular instance, San Antonio Symphony musicians were barred from leafleting in front of their home venue, where the vast majority of their performances take place, because the venue is not owned by their employer.
In another case, UPMC, hospitals were granted the ability to ban union organizers from talking to nurses in hospital cafeterias that are public.
The NLRB has also set its sights on undoing more recent precedents set during the Obama Administration. In 2011, the Board’s Specialty Healthcare decision undermined employers’ ability to increase the size of bargaining units in union elections, a tactic often used to make it harder for workers to organize. This ruling allowed, for example, workers in the cosmetics department at Macy’s to petition for a union election among themselves, rather than having to win an election for the entire store. One of the first things the new NLRB did was overturn this ruling—and then add additional measures that gave management even more power to beat organizing drives.
UNDERMINING COLLECTIVE BARGAINING
Traditional understandings and procedures in the collective bargaining process have also been upended. For over 70 years, employers were banned from making sweeping changes to wages, hours, or working conditions unless they demonstrated that the union had clearly waived its right to bargain over these issues.
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But the Board adopted a new rule that allows employers to make unilateral changes if there is reference in the contract to management’s authority over the issue.
In Johnson Controls, a rule was announced allowing employers to withdraw union recognition at the end of a collective bargaining agreement if they can prove that the union does not have majority support. They can now do this without holding an election, such as through an employee petition for decertification. But employers can still insist on an election when the union is first trying to be established—no “card check” there.
HURTS NEW ORGANIZING
In this age of dire economic inequality, Americans need and want unions. Recent polls show that nearly half of non-union workers say they would vote for a union if given the chance. Sixty-five percent of Americans have a favorable opinion of unions, according to a Gallup poll this year—the highest since 2003. But the NLRB is doing everything in its power to deny working people union protection.
Union elections have been undermined as well. Never letting a crisis go to waste, the board used COVID-19 as an excuse to halt all union elections in late March and early April, even though they could have been handled through the mail. This affected thousands of workers who were looking to vote a union in. More important, the Board enacted new rules that will affect the way union elections are done well after the pandemic is over.
Occasionally, employers will recognize a union voluntarily, without an election, when a majority of workers have signed union cards. The Board now requires such employers to tell those workers that they can file for an election to get rid of the union they just formed. New rules also dictate that a union election should proceed even when the union has filed charges of illegal practices by employers to alter the election.
Over the last decade, groups of Walmart workers have gone on many short strikes to raise awareness about the company’s labor practices. The NLRB ruled in July 2019 that more than a hundred Walmart workers who took part in a five-day strike were not protected by labor law. The Board argued that their action counted as an “intermittent” strike, which is unprotected, and thus there were no legal consequences for Walmart when the company retaliated.
There are already signs of what the Board will pursue if Trump gets a second term.
In the age of COVID-19, recent rulings related to workplace health and safety are particularly dangerous and despicable. Board regional directors have been told to dismiss COVID-related cases against employers. Incredibly, the Board has ruled that employers are not obligated to bargain over paid sick leave, hazard pay, or temporary closure due to the pandemic.
In such a stifled organizing climate, speaking out to the public about unsafe working conditions may be the only hope workers have for protecting their well-being. But the Board has made this more difficult as well, with recent advice memos from the General Counsel refusing to afford protection to or overturn firings of workers who spoke out against their company’s COVID safety procedures.
With each new ruling it becomes clearer that the Board seeks a workplace where employers have unfettered control over workers’ minds and bodies. In December 2019 a ruling allowed private sector employers to place major restrictions on the wearing of union swag, upholding a Walmart policy that restricts employees from wearing anything but “small, non-distracting” union buttons or other insignia in stores. Walmart absurdly claimed this practice would “enhance the customer shopping experience and protect its merchandise from theft or vandalism.”
In July, employers were given the green light to discipline shop stewards for using profanity during meetings with management. This effort to restrict behavior also extends to language used on picket lines and social media.
Labor law is not a silver bullet. Having strong labor laws on the books wouldn’t mean much without a vibrant union movement to enforce them. Conversely, it’s possible to have a situation where anti-worker labor laws are overcome by a militant presence on the shop floor and in society.
But it’s clear that these laws have real-world effects, especially for our ability to organize in the future. The NLRB under Trump exposes his pro-worker rhetoric as a lie.
There will be real consequences of another Trump term. But after the election is over comes the hard work of reversing the huge power imbalance between workers and the boss.
This blog originally appeared at Labor Notes on October 8, 2020. Reprinted with permission.
About the Author: Paul Prescod is a high school social studies teacher and belongs to the Working Educators caucus of the Philadelphia Federation of Teachers.