Compared to most agencies within the federal government, the National Labor Relations Board has yet to feel the full brunt of the labor-policy chaos already being wrought by the Trump Administration, such as their efforts to invalidate many pro-worker regulations promulgated by the Obama Administration’s Department of Labor. Because the NLRB is an independent agency, political leadership at the Board depends on a schedule of terms, rather than fluctuating at the pleasure of the President. Yet Trump’s move into the Oval Office resulted in a transfer of the title of Chair from Democratic member Mark Pearce to Republican member Philip Miscimarra. Numerical advantage, however, has not been altered, as the Board’s composition has remained steady at two Democratic members and only one Republican. In addition, a Democrat—Dick Griffin—still holds the General Counsel position and, as such, controls which cases get to the Board members for decision.
This little island of Obama Administration legacy in a sea of anti-labor Trump policy, however, is about to change. Over the past week, Trump announced the nomination of two new Republican Board members, the confirmation of whom would give the Republicans a majority. In addition, Richard Griffin’s term will expire this fall, giving Trump the opportunity to put a new chief labor prosecutor in place and to tee up cases in order to reverse precedent established during the Obama Administration.
There has been a great deal of speculation about what that change will look like. My colleague at Harvard Law, and a leading labor law scholar, Ben Sachs, recently laid out a plausible parade of not unimaginable labor policy horribles that may be forthcoming, predicting that a Trump Board may well overturn most of the major precedents of the Obama era, of which there were many. New York Times reporter Noam Scheiber provided a similar list in his coverage of last week’s nomination of Marvin Kaplan as one of the next Republican Board members.
Agreement among experts boils down to the following list of most-endangered precedents:
- Browning-Ferris Industries of California, which articulated a broader standard for when the Board can hold employers jointly liable for each other’s labor practices.
- Specialty Healthcare, which increased deference to unions to define the bargaining units they choose to organize through, including letting them choose whether or not to represent fewer than all employees in a workplace.
- D.R. Horton, which found unlawful employers’ demands that employees waive their right to participate in class actions as a condition of employment.
- Columbia University, which gave graduate teaching assistants the right to form unions.
Reversal of each and any of these cases would mark a significant blow to workers’ right to collective bargaining and to their ability to stand up together, with a true, united voice in their workplaces.
I endorse the above endangered list, but my own concern extends beyond these particular cases; I’m worried that the new majority, along with a Republican general counsel, will reverse the overall effort by the Obama Board leadership to demonstrate that the NLRB, after its 80 years of existence, is still relevant and can be adapted to meet the challenges of the modern workplace. Wilma Liebman, President Obama’s much-respected first Board chair, recently described her approach during her time on the Board as demonstrating a “commitment to dynamically exercise the Board’s discretion to adapt established legal doctrines, within the limits of the law, to preserve worker protections in a relentlessly changing economy.” (Emphasis added.) Below are a number of areas where the Obama Board took actions to advance this commitment and which, if reversed, would risk transforming the rights protected by the Board into mere relics instead of tools that help define the economic relationships between workers and employers in the future.
Social media: Reflecting the reality of much-diminished union density in our country, the Obama Board made an effort to further define how the law should apply to non-union workers who decide to stand together to affect their working conditions. Among the most interesting of these so-called “concerted activity” cases were those that related to employees’ use of social media to express workplace concerns and rally colleagues to their cause. To that effect, the Obama Board decided to protect employees who used Twitter and Facebook to express complaints about employer conduct, and to resolve questions about whether sitting alone in front of a computer could be considered “concerted” activity in the same way that having a face-to-face conversation is.
Email communications: In another important win for labor, the Obama Board redefined what it means to provide workers with real communication channels between colleagues for organizing purposes. During non-work hours, workers have long had the right to talk with their coworkers in the workplace. Recognizing that many workers no longer share a physical workplace and have little opportunity to spend time together in a common break room, for example, the Obama Board ruled that employers must give workers access to a work email system for the purpose of organizing or engaging in concerted activity to this effect.
Email lists: The Obama Board promulgated a major rule reforming the process by which workers vote on whether they wish to form a union. For decades, to ensure an informed electorate, the Board has required that employers provide a list of all the workers in the bargaining unit that the union is seeking to represent, along with their contact information, traditionally just their home addresses. The Board, under Obama, updated this requirement by adding email addresses and cell phone numbers to the type of contact information to be shared with the union.
Fissured workplaces: When the National Labor Relations Act was first passed in 1935, most working people walked in the front door of a building, reported to, and were paid by, the company whose name appeared over the front door, and stood or sat among other people who worked for that same company. Recognizing that the reality of the modern business model has become much more complex, the Obama Board took several steps to adapt the law to reflect these changes, which included clarifying the rules for when an employer is liable for the labor practices of another—a doctrine that has become especially relevant when dealing with subcontractors, staffing agencies, and franchise models—and has made it easier for a union to organize in a workplace that includes both temps and permanent employees.
The bottom line is that the National Labor Relations Board needs to continue updating this New Deal-era law, making it relevant to today’s workplaces, lest the rights it is designed to protect become worthless. As debate over the future of the Board moves to the Senate for its consideration of Trump’s nominees, I hope that the question of whether these individuals share the Obama Board’s commitment to adapting the law is put to them. Sadly, on this, I am not too hopeful.