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Has the NLRB Lost its Way?

The IBEW looks at the takeover of the NLRB by anti-union forces

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by Guest Post on
Sep 09, 2019

This post was written by the IBEW Media Department.

"Everybody needs a law that is precise and certain."

Sen. Robert F. Wagner was matter-of-fact in his call for Congress to pass the National Labor Relations Act in 1935: The New Deal's labor board was failing American workers.

"The oversight agency had become a "maze of confusion and contradictions… a sham and a delusion," Wagner said. Workers were struggling to survive while business and industry reaped the rewards of the nation's recovery from the Great Depression.

With the stroke of Franklin D. Roosevelt's pen that July, the NLRA was law.

It laid the foundation for a National Labor Relations Board with the power to enforce the right of workers to organize, bargain contracts and lawfully strike when management refused to play by the rules.

The Act wasn't perfect. It excluded many workers and its remedies were weak. But it was a huge step forward.

As union membership grew over the next 40 years, so did the economy. Working families prospered, able to buy homes, send their children to college, take vacations and look forward to a secure retirement.

If unions were the nails in building America's middle class, the NLRB was the hammer.

Wagner, who authored the Social Security Act that same year, understood that. 

What would he think now?

TODAY's  National Labor Relations Board is knocking down workers' rights and affirming management abuses at a breathtaking pace.

Recent rulings give employers a green light to eject union organizers from public spaces, to more easily withdraw union recognition, to discriminate against union members in the workplace, to thwart protests and to run roughshod over the rights of people working for subcontractors and franchises. The list goes on.

"You have a board under this administration that is rolling back policies of an Act that was limited from the outset, interpreting it in a way that continues to diminish the rights and protections of employees," former NLRB Chairman Mark Gaston Pearce told The Electrical Worker.

NLRB members are appointed by the president and confirmed by the Senate for staggered five-year terms. By tradition, but not spelled out in the law itself, the party in the White House controls three of the board's five seats and nominates two members from the minority party.

The current board is split 3-1, with a lone pro-worker voice drowned out by three GOP appointees, two of them from "union-avoidance" law firms that help management skirt labor law and crush organizing drives.

The fifth seat is vacant. Senate Majority Leader Mitch McConnell blocked Pearce from being reconfirmed when his term expired in 2018 and has indicated he will do the same with any future Democratic nominee.

Pearce, who heads a new Workers' Rights Institute opening at Georgetown University this fall, is careful to talk about the NLRB in the context of history. For starters, it wasn't born of altruism.

To be sure, Wagner had fought tirelessly for workers since leading a four-year probe of New York's deadly Triangle Shirtwaist fire in 1912. As a state senator, he introduced more than 50 labor reforms; 38 became law. Fellow progressives were appalled by reports of nightmarish working conditions and deaths in coal mines and factories.

But what they wanted most of all was labor peace. "There was a lot of strike activity going on," Pearce said. "It was affecting the economy."

He stressed the NLRA's many shortcomings and how the anti-union Taft-Hartley Act of 1947 made things worse.

Still, the NLRA's mission to balance the scales for workers is unambiguous. Section 1 cites employers' "denial" of their workers' right to unionize and makes it the policy of the United States to address the "inequality of bargaining power" by "encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association."

"The Act was not designed to be neutral," Pearce said. "It was designed to be a protection for workers."

On paper, it still is. In practice, it depends on who's interpreting it.

"What we're seeing and what we're hearing from the current chairman is his feeling that the board needs to be sensitive to the quote-unquote 'job creators,'" Pearce said. "He is specifically stating that the board has a responsibility to interpret the NLRA with those kind of concerns in mind, which is completely contrary to the language of the Act.

"The Act states clearly that it was designed to facilitate and foster collective bargaining."

UNIONS held out some hope for the NLRB after the 2016 elections, in light of the incoming president's many promises to workers. Then the board threw out five Obama-era rulings in a single week.

The board was at full strength at the time, late 2017, and had done damage already. But the clock was ticking on the GOP chairman's term; soon the board temporarily would be split 2-2. Republicans raced to kill the pro-worker reforms.

The flurry of decisions put dents in workers' organizing rights, their ability to bargain over employment terms, the pursuit of fair settlements for mistreated workers, and more.

"No matter the administration, we never have taken anything for granted at the NLRB and we never can," International President Lonnie R. Stephenson said. "We didn't always get our way under President Obama's appointees. But we got a fair shake, and that's a far cry from what's happening now."

The board's biggest target that week was the joint-employer standard. A 2015 ruling against Browning-Ferris Industries had updated it to hold parent companies to account when subcontractors and franchisees violate labor law.

The revelation of a member's conflict of interest forced the board to undo its reversal. Shrugging that off and ignoring a court decision that affirmed Browning-Ferris, the majority switched tactics: they would use the board's rule-making authority to get rid of the language.

That new rule could be issued at any time. Nothing in the board's pattern suggests it will be anything less than a gift to corporations, shielding them through layers of ownership from their obligations to employees.

"Ordinary Americans will feel the consequences," Karla Walter of the Center for American Progress warned in a column for The Hill. "Corporations can cut pay, lower workplace standards, and increase their own profits by outsourcing their workforce. … The NLRB's joint-employer safeguard provides an important check on corporate power by helping to ensure leading firms bargain over decent pay and work conditions."

If there's good news, it's that Pearce expects the decision will be tied up in the courts for the foreseeable future.

"It will be interesting to see how these rules will be able to survive if this board chooses to ignore the admonitions of the D.C. circuit and engage in what they seem to be hell bent on engaging in," he said.

THE current board routinely votes 3-1 against workers. Lauren McFerran is the opposing voice.

In her exhaustive dissents, she blasts the shaky foundations of cases the board picks to review and dissects the majority's pretzel-like arguments.

"Today's decision reflects a failure to engage in the reasoned decision-making required of the board," McFerran wrote when the board sided in July with Johnson Controls against the United Auto Workers. "There is no rational connection between the reasons offered by the majority for rejecting established law and the new approach it adopts here."

The board made it easier for employers to withdraw union recognition and refuse to bargain collectively, even "in the face of objective evidence that the union has not lost majority support," she said.

In June, the board ruled 3-1 for the University of Pittsburgh Medical Center, asserting that managers had the right to call police to kick out two union organizers who were talking quietly with employees over lunch in a public cafeteria.

The majority bought the hospital's claim that the visitors violated policies barring solicitation and distribution. In fact, managers cited no such policies at the time, McFerran countered, nor had the organizers done anything prohibited.

"That fact does not trouble the majority," she wrote. "In effect, the majority invites employers to post 'No Union Representatives Allowed' signs on property that is open to all other members of the public."

Among other recent 3-1 decisions:

  • The board sided with a San Francisco company that fired a group of janitors who picketed a secondary employer in their fight for fair wages and better working conditions. SEIU is appealing. Bloomberg Law said the case has "major implications for what workers can do to protest their employers' practices."
  • The board in June ordered a Laborer's local in Brooklyn to deflate its giant rat balloon, a decision quickly reversed by a federal judge on free-speech grounds. The board's general counsel is pursuing similar cases vigorously, determined to exterminate the rat permanently.
  • In May, the board found that pharmaceutical giant Merck did nothing wrong by giving nonunion employees an "appreciation" day off — to celebrate soaring profits — while requiring union members to work. McFerran decried the ruling as discriminatory and punitive.

Adding to the alarm, watchdogs warn that the board's decision-making process is moving further from public view.

The Johnson Controls case in July was at least the 10th time the Trump-era board reversed settled law without giving prior notice or seeking public input, Bloomberg Law reported.

"Not providing notice or inviting additional input en route to overruling precedent without being asked feeds criticism that the Trump NLRB is advancing its pro-management agenda more aggressively than past boards pushed their policy priorities," the article states.

The escalating hostility goes beyond the board itself. Behind the scenes, general counsel and former construction industry lawyer Peter Robb is putting precedent-shattering cases on the front burner, calling for vast structural changes to give the central agency more power over regional offices, and seeking to slash staff and investigatory budgets, among other upheaval.

"He seems to be on a mission that's really unprecedented," past NLRB Chairman William Gould told Bloomberg News in June.

HOW big an impact specific rulings will have on the IBEW's organizing efforts isn't clear, but organizers say the NLRB's hostility toward unions is validating employers' worst instincts.

"It seems under the current board that companies are bolder in fighting every little issue they can," said Bert McDermitt, a Fourth District regional organizing coordinator. "They are less concerned about any objections we may file."

He noted how an electrical company in Maryland recently sent its HR director to be the official observer when 15 employees voted on representation. The IBEW lost.

"It was a brazen effort to intimidate the workers," the kind of move that companies tended to be more cautious about in the past, McDermitt said.

When his team prevailed in a campaign in Kentucky last year, the company groundlessly filed a "test of cert," refusing to recognize the IBEW as the new unit's bargaining representative.

"Small group of folks, six people, voted 100% to be represented," McDermitt said. "From Day One we used standard labor board language to describe the bargaining unit. But the company fought us every step of the way, and it's still fighting."

Joseph Skinner, a Fifth District regional organizing coordinator, is accustomed to uphill battles in the Deep South. But he's worried about the NLRB making a tough job harder.

The public-space ruling is of particular concern, given what he's long experienced while leafleting on a public right of way. Even though he's not on company property, security guards and managers routinely order him to leave.

He politely explains that he's there legally, and at the request of workers who are interested in the IBEW. Managers often call the police, who tell them Skinner isn't breaking any laws.

But he can foresee employers being emboldened by the public-spaces ruling, and fears the consequences.

"It would limit our abilities drastically," Skinner said. "Any little thing like that hurts us. If you take away any of our points of communication, it hurts us."

The board has also resurrected the issue of employer email with a case brought by a Caesar's hotel.

It targets a 2014 ruling against Purple Communications affirming that employees have the right to discuss union issues via their work email accounts. That ruling capped a decade of litigation by Purple and an Oregon newspaper fighting to restrict workers' access.

The board reasoned that email had become essential at work beyond strictly business purposes — the electronic version of public spaces where off-duty employees meet on breaks and lunch hours.

Few people realize the case is in play again, with scant media coverage beyond employment law and HR websites eager about the prospect of Purple's demise.

Topeka, Kan., Local 304 organizer David Galvan is hoping for an outcry before it's too late. In communicating with the local's 2,100 far-flung utility industry members, some of them covering hundreds of miles of territory, he says access to employer email systems is vital.

The local has filed an amicus brief in the pending case, which begins by explaining that today's work vehicles have computers, not radios. As a result, Galvan said companies use email for everything — from posting bids and schedules to requesting an available steward or other union assistance.

"It seems hypocritical at best," he said, to block unions from using email to announce meetings or share other information that doesn't need to be sent more securely.

The brief led Galvan to be interviewed for a column published on Medium. "Email is kind of seen as a white-collar, office worker type of thing, but it's really not," he told the writer. "Taking that away would be a crushing blow for us. … You got a guy who's on the road for six or 12 hours a day — he doesn't communicate except over company email."

ANTI-UNION fervor inside the NLRB, fueled by corporate and political animus from the outside, is as old as the board itself.

But Pearce said it wasn't overtly political until Ronald Reagan's presidency. "That was a turning point," he said. "And when the changes came, they came in a very partisan way."

Under McConnell, Senate ire toward the NLRB shifted into overdrive during the Obama administration. The GOP's refusal to confirm nominees left the board without a quorum from the time he took office in 2008 until mid-2013.

With miles of backlogged cases and long-delayed justice for workers, Obama attempted to revive the board in January 2012 with three recess appointments. A year later, the D.C. Circuit Court threw out the appointments and 12 months of progress.

As Senate leaders continued to obstruct Obama's nominations, labor unions launched a major campaign to help Americans understand the crisis. By July, a full five-member board with a worker-friendly majority had been confirmed.

Stephenson said it's proof of the power workers have when they band together, even at times like these when political opponents seem to hold all the cards.

"Our collective power can change everything in 2020 if we elect leaders who have our backs, who understand just like Robert Wagner and Franklin Roosevelt did 80 years ago that strong unions are essential to the quality of life for workers and their families. We need politicians who understand that unions are the backbone of a strong economy that works for us, not just corporations," he said.

"We've done it before and we can do it again. Our votes next November and everything we do in the meantime to educate other voters can fundamentally shift the direction of the NLRB and the other arms of government that are attacking our rights."

Click here to see the Who's-Who at the NLRB.

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