Precedent Out the Window

Since attaining a majority on the board, Republicans have overturned NLRB precedent in more than a dozen cases. Every single decision has favored employers. In none of these cases did the Trump board follow the long-standing practice of getting public input before reversing precedent, and many of these rulings strike at the heart of long-established practices that are vital to basic union organizing.

Take the board’s ruling in Bexar. While union organizers do not often have broad access to a workplace to talk to employees about issues, they usually have been allowed into public spaces on an employer’s property. They’ve also been granted the ability to leaflet in areas where other non-employee groups, such as the Girl Scouts, are allowed to solicit. But thanks to the NLRB’s Bexar ruling, now off-duty employees do not have a right to organize in public areas of their workplace if their employer is a contractor.

Another ruling, Kroger Limited, severely limited the ability of union organizers to leaflet, while still allowing other groups like the Salvation Army to do the same. In a similar case, UPMC, hospitals were granted the ability to ban union organizers from talking to nurses in hospital cafeterias that are public. The anti-union bias in this slew of decisions is clear and unmistakable.

The current NLRB has also set its sights on undoing more recent precedents set during the Obama administration. In 2011, the board ruled in Specialty Healthcare that workers have the right to establish their own bargaining units. One of the first things the new Republican-dominated NLRB did was overturn this ruling. To make matters worse, the board then added additional measures that gave the bosses even more power to beat organizing drives.

In 2018, 178 workers in two different job classifications at a Boeing facility in South Carolina voted to form a union. Boeing refused to bargain with them, and after sixteen months, the NLRB added new components to the bargaining unit test, ruling that the 178-employee unit was not appropriate. Thanks to this direct and one-sided intervention, those workers now cannot enjoy the benefits of a union — despite having voted for one.

Traditional understandings and procedures in the collective bargaining process have also been upended. For more than seventy years, employers were banned from making sweeping changes to wages, hours, or working conditions unless they demonstrated the union had clearly waived its right to bargain over such an issue.

But the board adopted a new rule that allows employers to make unilateral changes if there is any reference in the contract to management’s authority over the issue. This was followed up by another decision that lets employers make changes without negotiating with the union when a contract expires.

In Johnson Controls, another unprecedented rule was announced, allowing employers to withdraw union recognition at the end of a collective bargaining agreement if they can prove that the union does not have majority support. They can now do this without holding an election, despite still being able to insist on an election when the union is first trying to be established.

Everett Kelley, the national president of the American Federation of Government Employees, said of these changes, “I have to admit federal workers have suffered. We’ve seen federal worker contracts just ripped up and replaced with contracts written by management that had no negotiations at all.”

In a few short years, Republicans have used the opportunity presented by a Trump administration to attack workers in ways we haven’t seen since before the Great Depression. While these seismic shifts in labor relations rarely get highlighted in the media, it should cause alarm for anyone that cares about working people’s basic rights.

Threat to New Organizing

In this age of dire economic inequality, Americans need and want unions. Recent polls show that nearly half of nonunion workers say they would vote for a union if given the chance. And 64 percent of Americans have a favorable opinion of unions, according to a Gallup poll from last year — the highest we’ve seen in a very long time.

Rebuilding the labor movement and organizing the unorganized is a central task for the Left in this moment. The NLRB is doing everything in its power to deny working people the union protection they crave.

The misclassification of workers as independent contractors is one of the fastest growing and most disturbing trends in the US economy. The Department of Labor estimates that up to 30 percent of firms misclassify workers as independent contractors. These workers are denied rights under the National Labor Relations Act, and thus robbed of the right to form a union.

Organizing these workers will be a critical project for the labor movement in the coming years. The NLRB has made this already daunting task much harder.

In August 2019, the NLRB ruled that misclassification, even when it’s done intentionally to avoid unionization, is not a violation of the NLRA. General counsel Peter Robb used employer-favored criteria to decide that Uber drivers are independent contractors instead of employees.

Union elections have been undermined as well. Never letting a crisis go to waste, the board used COVID-19 as an excuse to halt all union elections, even though they could be done through mail. This has affected thousands of workers who were looking to vote in a union. More important, they have enacted new rules that will affect the way union elections are done well after the pandemic is over.

The board now requires employers to tell workers they can file a petition for an election to get rid of the union that was just voted in. This violates the long-standing practice of voluntary recognition, where employers agree to recognize a union whenever a majority of workers sign union cards. The new rules also dictate that union elections should be run even when charges of illegal practices by employers to alter the election have been filed.

A Perilous Future

Over the last decade, groups of Walmart workers have gone on many short strikes to raise awareness about the company’s bad labor practices. The current anti-worker NLRB ruled in July 2019 that a group of more than a hundred Walmart workers who took part in a five-day strike were not protected by labor law. They argued that their action counted as an “intermittent” strike and offered no legal consequence when Walmart retaliated against the workers.

Similar instances have become the norm under the Trump administration. Of course, labor law and corporate power have always been stacked against workers. But this power imbalance has reached new levels under the Trump-appointed board. There are already signs of more vicious attacks on workers the board will pursue if Trump gets a second term.

For one, Trump has floated the idea of reducing the NLRB’s budget for staff. This is despite the fact that the number of people joining the private-sector workforce is increasing. From 2017 to 2019, the number of full employees at the NLRB fell by 10 percent. This is consistent with Trump’s general approach of undermining needed government institutions by draining them of resources.

In the age of COVID-19, the NLRB’s recent rulings related to workplace health and safety are particularly dangerous and despicable. Regional directors have been told to dismiss COVID-related cases against employers. Incredibly, the board has ruled that employers are not obligated to bargain over paid sick leave and hazard pay due to the global pandemic. Employers are also free from having to bargain over a temporary closure.

In such a stifled organizing climate, speaking out to the public about unsafe working conditions may be the only hope workers have for protecting their well-being. The Trump-appointed board has this covered as well, declaring that speaking out against their company’s COVID safety procedures is not protected speech. In other words, you can be fired for raising safety concerns during a deadly global pandemic.

With each new ruling, it is becoming clearer that the current board seeks to create a completely authoritarian workplace, where employers have unfettered control over workers’ mind and body. In December 2019, a ruling allowed private-sector employers to ban the wearing of union swag. Walmart absurdly claimed such repressive practices “enhance the customer shopping experience and protect its merchandise from theft or vandalism.”

In July, employers were given the green light to discipline shop stewards for using profanity during meetings with management. This effort to restrict behavior also extends to language used on picket lines and social media.

A Fight for Survival

Labor law is not a silver bullet. Having strong labor laws on the books won’t mean much without a vibrant trade union movement to enforce them. Conversely, it’s possible to have a situation where anti-worker labor laws are mitigated by a militant presence on the shop floor and in society.

But it’s clear that these laws have real-world effects, especially for our ability to organize in the future. The NLRB under Trump has been an absolute disaster for working people and exposes his pro-worker rhetoric as a lie. We’ve never had a board so overwhelmingly on the side of the corporate class.

Examining Trump’s NLRB appointees should also drive home that there will be real consequences of another Trump term, and thus there are real stakes in this presidential election. After it’s over comes the hard work of reversing the huge power imbalance between workers and the boss. The slow, decades-long task of rebuilding the labor movement has been and always should be the main project of the Left.

Electoral candidates at the local, state, and federal level also have a role to play in supporting workers’ rights to organize a union. Left electoral candidates should run on bold programs like the Workplace Democracy Act that increase labor’s power and ability to expand in society.

While the Left has said that the labor movement is in crisis for decades, there is something qualitatively different about this moment. It’s time to get to work.