The National Labor Relations Board put its first Republican majority in years to quick use, issuing a flurry of decisions in a single week in early December that unraveled important pro-worker gains made over the last eight years.
“These decisions will hobble the ability of millions of working people to organize, which goes right against the mission of the agency,” said International President Lonnie R. Stephenson.
The five-person board typically has a majority of appointees from whichever party is in power, so it’s not uncommon for a new NLRB to overturn certain rulings from the previous administration. What made this flurry of action particularly crushing is how many decisions were thrown out so quickly – and just before the end of outgoing NLRB Chairman Philip A. Miscimarra’s term. Miscimarra’s last day was Dec. 16, and the board’s assault on workers’ rights occurred in the week leading up to his retirement.
On Dec. 22, President Donald Trump appointed board member Marvin E. Kaplan as the new chair, and the body will have a 2-2 partisan split until Trump fills the vacancy, almost certainly with another Republican.
“It is very unusual for those big cases to roll out quickly, unless Miscimarra had the decisions ready for new board members to sign and they just signed them,” said Wilma Liebman in The American Prospect. Liebman is a former Democratic appointee who previously served as the board’s chair. “Obviously there wasn’t a whole lot of deliberation. [Trump’s appointees] came in predisposed to oppose [the Obama-era rulings].”
With only a small window to make the most of its 3-2 majority, the NLRB threw out five decisions from the Obama era. It overturned the joint employer standard, issued in 2015, that made franchise owners more accountable. The ruling makes it harder for employees to challenge companies over unfair labor practices.
The board reversed a 2004 decision that bolstered workers’ rights to organize without employer interference. It overturned a 2016 decision limiting the ability of employers to settle cases that did not provide a “full remedy” to mistreated workers, and it reversed another 2016 decision that safeguarded workers’ rights to bargain over changes in employment terms. Finally, the Trump board overturned a decision from 2011 that allowed small bargaining units, or so-called “micro unions,” within a larger company – a critical tool for organizers seeking to gain footholds with large employers.
The decisions were all decided along party lines, a 3-2 split, with the Democrats dissenting.
In the case of the joint employer standard, also known as Browning-Ferris, the board took the extraordinary step of overturning it in a case in which dissenting member Lauren McFerran said the parties didn’t even ask the board to reconsider the standard.
In cases of such magnitude, the board frequently invites the public to comment by filing legal documents called amicus briefs. But it did not do so this time, nor in any of its other December decisions.
For working families, the purge of worker-friendly labor policies is far from over. The NLRB’s new Trump-appointed general counsel, Peter B. Robb, issued a memo in December asking regional officers to flag disputes in cases that were decided “over the last eight years that overruled precedent and involved one or more dissents” – essentially asking for decisions made during the Obama presidency that favored working people – identifying those decisions so the board can begin dismantling them too. The general counsel is independent from the board and responsible for investigating and prosecuting unfair labor practices and for general supervision of the NLRB field offices.
The NLRB is also soliciting public comment on whether to roll back a rule that shortened the union election period, giving employers less time to dissuade employees from voting for union representation. More information on the request can be found here, and you can weigh in on the issue on the NLRB website.
In a scathing dissent to one of the rulings, Democratic NLRB member Mark Gaston Pearce summed up the feelings of the pro-worker community, writing:
“It is indeed unfortunate that when historians examine how our agency functioned during this tumultuous time, they will have no choice but to conclude that the board abandoned its role as an independent agency and chose to cast aside reasoned deliberation in pursuit of an arbitrary exercise of power.”