By Paul Longo, Staff Writer
In the wake of the recent and all-consuming Supreme Court confirmation battle, all eyes have been on the nation’s highest court. Yet, there are five other “judges” whose “rulings” affect millions of U.S. workers: the National Labor Relations Board (NLRB), under the Trump administration, is poised to undo Obama-era labor regulations brick by brick, and has already started the dismantling process.
The NLRB is an independent government agency charged with enforcing U.S. labor law as it applies to collective bargaining and unfair labor practices. The Board is governed by five members (along with a General Counsel), all of whom are appointed to five-year terms (four for the General Counsel) by the President and confirmed by the Senate. The Board’s verdicts are not legally binding, but the courts enforce its decisions and in a way, it is the de facto “Supreme Court” of labor law in the U.S. This influence becomes increasingly significant with union membership on the decline. Currently, the Board’s jurisdiction is limited to the private sector and the United States Postal Service, though the Board has the power to prune or nurture burgeoning unions, as well as workers’ rights in general. As public support for unions continues to grow, and private sector workers look to unionize, it is likely the NLRB will hear more and more cases regarding the mechanics of unionization (i.e., how proposed unions become recognized, and what they can or cannot do in relation to their employers), giving the Board authority over the relative ease or difficulty a union will face as it forms.
Since one NLRB member’s term expires each year, Trump has the opportunity to nominate two more Board members for Senate confirmation before the end of his term. To the surprise of many in the Republican Party, President Trump recently nominated Mark Gaston Pearce, a Democrat and former Chairman of the NLRB originally nominated under President Obama. There is a consensus in Washington that President Trump has chosen Pearce as part of ongoing negotiations with Democratic Senator Chuck Schumer. In exchange for Pearce’s nomination, the Democratic leadership has supposedly agreed to confirm pending nominations for other positions, including those within the Labor Department. Even if Pearce is ultimately confirmed, the NLRB will consist of a three-to-two Republican majority (the NLRB’s processes do allow for some three-person committees to make decisions when there are conflicts of interest, leading to the potential of a Democrat majority; however, this scenario is not exceedingly common).
This Republican majority has the potential to leave a lasting impact on the U.S. labor movement. For example, the NLRB is currently proposing updating its joint-employer standard, which would overturn the previous standard set by the Browning-Ferris Industries case. Under the new standard, employers would only be considered a joint-employer with another employer, if both employers co-determined a worker’s conditions of employment, i.e., hiring, firing, discipline, supervision, and direction. In layperson’s terms, McDonald’s would not be jointly responsible with its franchises for obeying or breaking U.S. labor law. While opponents of the new standard claim that McDonald’s workers would be left without an employer to bargain with, or indict when they feel their rights as workers have been violated, proponents believe it is unfair to companies like McDonald’s to have to enter into collective bargaining relationships with workers who are not technically employed by them.
With midterm elections right around the corner, issues such as healthcare, the economy, and immigration are bound to take up a majority of the national conversation, leaving little room to shine a light on NLRB decisions and their implications on the U.S. workforce. However, the NLRB’s political makeup, and the fact that nominations for the Board are confirmed by the Senate, makes those races that much more significant. If Republicans were to retain control of the Senate, Trump’s NLRB would only gather more momentum in the last two years of his term. In the Browning-Ferris Industries case, were the NLRB to side with management, workers would be left without anyone to whom they could address their grievances.
If Democrats were to regain control, the labor movement is much more likely to see the status quo survive in the short term. This means: off-duty employees would continue to be allowed to picket directly in front of an employer’s establishment; employees would not be suspended or terminated before entering into a collective bargaining agreement, without the employer first bargaining with the newly-certified union; and employers would not be allowed to withhold witness statements in workplace investigations in order to prevent potential employee retaliation against that employer. For all of these reasons, the NLRB’s decision to uphold or reverse previous decisions (let alone establish new rules) could upend many private-sector workers’ professional lives, including those in unions, and those seeking to create new unions. The stakes are, quite directly, workers’ livelihoods.