Trump NLRB majority moves fast to reverse Obama-era decisions

Republicans had a majority on the National Labor Relations Board (NLRB) for three months, and moved quickly to overturn several Obama-era NLRB rulings that made it easier for workers to unionize and defend against employer labor law violations. For now, further reversals of union-friendly Obama-era policies are on hold until President Donald Trump nominates a new member to fill a vacancy on the Board.

The NLRB is the independent federal agency that enforces and interprets the National Labor Relations Act (NLRA), the 1935 law, revised in 1947, that sets out the union and collective bargaining rights of private-sector workers. The agency consists of two parts:

  • The Office of General Counsel, which includes a network of branch offices where agents administer union certification elections and investigate and prosecute labor law violations.
  • The Board itself, a five-member quasi-judicial body that interprets the NLRA as a kind of labor law Supreme Court.

By law, the Board is filled with three members of the president’s party and two from the other party. Democratic and Republican Board majorities used to have a kind of consensus on how to interpret and enforce the law, but in recent decades, the NLRB has made major swings based on which party is in the White House. In the George W. Bush years, the NLRB rolled back collective bargaining rights for nurses and graduate students, for example, while the Obama-era NLRB worked hard to move the other direction, modernizing the law’s requirements, making the agency’s processes more efficient, and restricting the ability of employer-side lawyers to gum up the process.

Now Trump appointees are undoing that progress.

To serve as General Counsel, Trump named Peter Robb, the anti-union lawyer who wrote the memo that allowed President Ronald Reagan to fire striking air traffic controllers in 1981. And to the Board he nominated Marvin Kaplan and William Emanuel. Kaplan is a former attorney for House Republicans who drafted legislation to overturn Obama-era NLRB rulings. Emanuel is a former partner at Littler Mendelson, one of the nation’s premier antiunion law firms, representing Amazon, Target, Uber, and FedEx and over 100 other clients. (He says he’ll recuse himself if he’s called upon to judge cases they’re involved in). Trump also elevated Republican Obama appointee Phillip Miscimarra to chair the five member Board.

When Emanuel was confirmed by the Senate Sept. 25, Republicans had a three-two majority, and got busy:

  • The ‘ joint employer decision: When temp or franchise workers want to unionize, who’s their employer? Companies have long used two-party legal structures to evade the obligation to recognize unions or to avoid liability for labor law violations. Then the Obama NLRB, in its 2015 Browning-Ferris decision, expanded its definition of ‘joint employer’ to better hold them accountable. On Dec. 14, the Trump NLRB reversed that decision. Unions will again have to prove that one entity directly exercised control over essential employment terms of another entity’s employees.
  • The so-called ‘micro-union’ decision: In its 2011 Specialty Healthcare decision, the Obama NLRB curbed employers’ ability to delay union elections using legal challenges over what’s an appropriate bargaining unit. The ruling said a union’s proposed unit didn’t have to be the ‘most appropriate,’ it just needed to be appropriate. On Dec. 14, the Trump NLRB overturned that [See related story.]
  • Expedited union elections: Over the decades, employer attorneys developed an array of legal objections they’d deploy to delay union elections, including challenges as to who is eligible to vote. In 2015, the Obama NLRB general counsel issued new rules saying union elections could go forward with those challenges resolved afterward. That shortened the time between the  union election request and the vote itself. Employer groups protested what they called “quickie” elections — which didn’t give them enough time to squelch union campaigns. On Dec. 13, the NLRB announced it’s reconsidering the expedited election rule, and is soliciting public comments on the rule, asking whether it should be rescinded, modified, or retained, with a deadline of Feb. 12.

Chair Miscimarra surprised many when he announced he would not serve another term. His term ended Dec. 31, leaving a vacancy on the Board. President Trump appointed Kaplan chair on Dec. 22, but he’ll have to nominate another member— and get the Senate to confirm that person — before the work of undoing Obama-era decisions can continue.

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