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Will Biden Repair Trump's Damage to the NLRB?

Phil Cohen looks at what Biden can do to reverse Trump's anti-worker moves at the NLRB

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by Phil Cohen on
May 24, 2021

One of Donald Trump’s less-documented abuses of power has been his subversion of the National Labor Relations Board.  The NLRB was created by Franklin D. Roosevelt as part of the New Deal in 1935 to encourage collective bargaining through the administration of the National Labor Relations Act.   This federal law enforcement agency is tasked with investigating allegations of interference with employee rights to representation and prosecuting offenders.

The NLRB is governed by a five-person panel appointed by the President of the United States, with Senate approval, for staggered five-year terms.  They oversee twenty-six regional offices and adjudicate cases not resolved locally.

Starting in 2017, Trump created a majority on the Board consisting of anti-union attorneys, with the reverse mandate of discouraging collective bargaining through biased decision making and more importantly, by neutering the Rules and Regulations used by the agency to interpret the National Labor Relations Act.

As Special Projects Coordinator for Workers United/SEIU, I’ve dealt with the NLRB under every president since George Bush Sr.  Naturally, under Republican administrations the Board’s legal interpretations have been slanted a bit to the right, and under Democrats, a bit to the left.  But I’ve never encountered anything like the Trump NLRB, sharing his utter disdain for democratic due process.

Joe Biden talks a good game when it comes to unions and backed it up by firing the NLRB’s right-wing General Counsel Peter Robb and appointing Lauren McFerran, the one remaining Democrat on the Board, as its chairman.  Unfortunately, these actions remain mostly symbolic, while Trump’s majority retains control until their terms expire.  A discussion of their anti-union rulings could fill a book.  They’ve overturned key precedents protecting workers’ rights for decades, including:

  • Shop stewards can now be disciplined or fired for using profanity during a grievance meeting while picketing, or even on social media when describing management.
  • Millions of workers have lost the right to leaflet at their workplace if the property is owned by a third party but occupied by their employer.
  • New restrictions have been placed on the rights of organizers to communicate with hospital workers.

Fortunately, the overturning of precedents is a double-edged sword that can ultimately be put to good use by a Biden-appointed NLRB as terms expire.   The most serious damage has been caused by sweeping legislative changes.

The National Labor Relations Act defines workers’ rights in conceptual broad strokes, seldom referencing enforcement or consequences.  If future archeologists uncovered the NLRA and studied it out-of-context, they’d have no idea what it actually meant.  Its application has been defined in the Rules and Regulations Manual, also enacted under Roosevelt, and honed during decades of litigation.

Congress delegates rulemaking authority to federal agencies under the Administrative Procedures Act.  It’s a long, convoluted process, unfolding over many months.  Once in office, the Trump NLRB radically revised its Rules and Regulations, making it far easier for employers to engage in illegal union-busting and more difficult for unions to organize.

The Blocking Charge Policy was eliminated in 2020.  Having spent thirty years in the field successfully fighting professional union busters, I can tell you with certainty that every viable decertification campaign is employer-supported.  It becomes the union’s burden to prove it, and NLRB standards for doing so have always been stringent.  But since 1935, decertification elections have been placed on hold while charges are being investigated and dismissed when allegations of illegal employer involvement are upheld.

For the past year, decertification elections have been allowed to proceed while management participation is still under investigation.  Votes are then impounded until the NLRB makes its final determination.  This unnecessarily complicated process leaves workers uncertain and confused, undermining their local union as the case drags on for months or even years.      

A decertification petition can now be filed forty-five days following employer recognition of a union.  Replacing the one-year bar that allowed a reasonable time for contract negotiation seriously compromises a union’s bargaining leverage.    

Organizers of new units now face an onslaught of red tape and roadblocks intended to delay elections, giving management more time to implement divide-and-conquer tactics. Companies no longer have to provide employee phone numbers and emails on their bargaining unit lists.

August 27, 2021, will be a landmark day for the labor movement.  Republican William J. Emanuel’s term will expire.  Biden will have an opportunity to fill both his seat and a current vacancy with progressive Democrats, giving them a Board majority.  Like all important changes, it will be easier said than done, since appointments require Senate approval.  Once created, the new Board’s first order of business should be to invoke the Administrative Procedures Act and reverse Trump-era changes to its Rules and Regulations.

The PRO Act is a glorious wish list, crowned by the elimination of right-to-work.  Unfortunately, it’s unlikely to survive a Senate filibuster.

Right-to-work was legislated in 1947 as part of the Taft-Hartley Act and is enforced by the NLRB.  The cornerstone of the National Labor Relations Act is that neither employers nor unions can discriminate against workers for their choices regarding union membership and participation.  For decades, the Board has interpreted union refusal to represent nonmembers as discrimination.  It’s the most twisted piece of logic in the free world.  What other organizations are legally bound to offer services to those who don’t belong?

The challenge of arguing against right-to-work is surmounting what appears to be a reasonable question:  Shouldn’t people be able to choose what organizations they belong to?

The other half of the equation is less often discussed:  Unions are forced to represent nonmembers.

I propose House Democrats draft a standalone bill, leaving right-to-work in the hands of individual states, but amending the law so that unions are no longer required to represent nonmembers.  It would at least have a fighting chance in the Senate, being consistent with a core value of capitalism:  People should work and pay for services rendered.

I visited the Netherlands in 1996 and became friends with a representative of their butcher’s union.  He explained that was how things were done there.  What I’m suggesting isn’t a new or radical concept, and it works elsewhere.     

The truth is that most nonmembers aren’t anti-union.  They simply enjoy getting the benefits of unionization for free.  The right-to-work movement targets the selfish side of human nature to serve their divisive strategy.  Unions lose bargaining power and essential resources as a result.           

Perhaps an even more straightforward approach would be a Democrat-controlled NLRB using the Administrative Procedures Act to revise its Rules and Regulations, repealing union obligation to service nonmembers.  While right-to-work deserves to be eliminated, at the very least it should be redefined as right-to-work without representation.

Phil Cohen is the author of Fighting Union Busters in a Carolina Carpet Mill

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