Imperiling workers and the public, the National Labor Relations Board has dismissed cases against employers charged with firing COVID-19 whistleblowers and refusing to bargain over safety and health issues.
The decisions, laid out in five memos to NLRB regional directors, are among the most recent assaults on workers' rights and safety by the Republican-controlled board and its fierce union-busting general counsel, Peter Robb.
There's “only one outcome in their decision making," former NLRB chairwoman Wilma Liebman told Bloomberg Law. "All decisions favor employers, a result inconceivable under a statute designed to protect workers."
Despite the virus' rapid spread, the NLRB is letting employers drag their feet. It dismissed charges the Teamsters brought against a concrete company, which refused to reopen bargaining to discuss paid sick leave and hazard pay. The memo said management is only obligated to do so 60 days after a formal request from the union.
At least two of the cases involved workers who were fired after speaking up about dangerous conditions, including a nurse at a New York nursing home where employees were required to share what are intended to be sanitary isolation gowns.
"The board has decided that an individual speaking out about a company's COVID safety procedure is not protected speech," Bloomberg Law stated.
The board also dropped a case against a Texas drywall company that fired a worker who raised concerns about a lack of hand-washing supplies. The NLRB accepted it as protected speech but rejected the claim of retaliation.
The facts of each case may differ, but the message is clear, International President Lonnie R. Stephenson said. "Not even the gravity of a deadly pandemic is slowing down the NLRB's attacks on our fundamental rights as workers, one of which is returning home safe and well every day.
"Let me be blunt: The only way that changes is by electing a pro-worker, pro-union president who appoints board members who will stand up for us," he said. "We know Joe Biden will do that because he's had our backs for 50 years."
The five-seat NLRB is controlled by the party in power in the White House. Until recently, the board was composed solely of three Republicans who raced to issue unanimous 3-0 rulings against workers.
Senate Majority Leader Mitch McConnell had refused to fill either of the two vacant seats belonging to Democrats. Finally, in late July, he allowed the reconfirmation of Lauren McFerran, whose previous five-year term ended last December. Once again, she is the NLRB's lone worker-friendly voice.
The current board majority is “apparently taking advantage of the pandemic to excuse employers from obligations they would otherwise have under the statute," Liebman said in the Bloomberg article.
In the process, she said, they are easing or discarding "norms that provide some measure of integrity to agency procedure."
Liebman, who served on the board from 1997 to 2011 and was appointed chairwoman by President Obama in 2009, said the presidential election is also a factor, spurring the board to “rush to check off all the items on management law firms’ wish lists.”
The pace picked up sharply about a year ago, including rulings that allow employers to kick organizers out of public spaces and forbid union apparel at work; shield corporations when franchises mistreat employees; ban certain informational pickets; and much more, including a June decision that expands the right of employers to search workers' cars and other belongings on company property.
In “matters of substance, procedure and integrity, they are continuing in a direction long in the making, but seemingly at an accelerating pace," Liebman said.