Highlights:
Trump Appointed A Majority Of The Members Of The NLRB. According to Politico, “Trump’s appointees as the majority on the National Labor Relations Board limited workers’ rights to organize on employers’ property, as well as the scope of who should be included in particular bargaining units. Biden’s appointees to the NLRB have subsequently worked to dismantle much of the Trump board’s legacy.” [Politico, 9/21/23]
Trump’s NLRB Ruled To Make It Easier For Employers To Fire Workers In Retaliation For Union Activity. According to the Economic Policy Institute, “In a disturbing decision, the Trump board found that an employer gave a false reason for firing a pro-union worker, but the Trump board let the employer off the hook, saying that the general counsel did not show that the employer had an anti-union motivation for firing the worker. The employer told the pro-union worker to ‘shut up’ when she made pro-union comments at a mandatory captive audience meeting, but that was not enough evidence of anti-union bias for the Trump board. According to dissenting member McFerran, the decision ‘marks the first time in history the board has declined to find a violation of the Act when there is clear reason to infer an anti-union motive and no evidence…of any other lawful motive.’” [Economic Policy Institute, 10/16/19]
Trump’s NLRB Picks Made It More Difficult For Unions To Win Representation. According to CNN, “During Trump’s term, the NLRB members he appointed made it more difficult for unions to win representation at nonunion workplaces, extending the time between when a union files for representation to when an election is held, and thus granting management more time to campaign against the union with its employees.” [CNN, 9/27/23]
Trump’s NLRB Established A New Rule To Make It Easier For Employers To Undercut The Results Of A Union Election. According to the Economic Policy Institute, “However, in Johnson Controls, Inc., 368 NLRB No. 20, the Trump board established a new rule—that employers are legally permitted to withdraw recognition at the conclusion of the collective bargaining agreement if they claim to have evidence that the union does not have majority support. If the union wants to get its status back, it must file a petition for a new election and prevail in that election. There is no reason to require a union and employees to go through the NLRB election process when the union still has majority support. Moreover, the rule sets up an imbalance in the law—the rule allows employers to withdraw recognition without an election, but employers can still, at the beginning of a bargaining relationship, insist on an election and refuse to recognize a union that has demonstrated it has majority support. This imbalanced, unjustified undermining of union status shows the anti-union, pro-employer bias of the Trump board. This decision merely serves to undermine the results of a union election.” [Economic Policy Institute, 10/21/20]
Trump’s NLRB Suspended All Union Elections During The Pandemic. According to the Economic Policy Institute, “On March 19, the Trump NLRB ordered a suspension of all union elections—including mail ballots—through April 1. In the midst of the pandemic, when many workers were navigating issues of health and safety, and looking for ways to have their voices heard, the agency responsible for ensuring workers have the right to a voice in the workplace denied them the ability to exercise these rights. By suspending all union elections, the Trump board essentially cut off workers’ ability to win union representation. The board undertook this action while simultaneously finalizing the rule discussed in the previous section that makes it more difficult for employers to voluntarily recognize a union. During the suspension, 21 election petitions were filed, representing more than 1,700 workers seeking to unionize. By the Trump board’s own estimate, the median time between petition and election is 23 days. Therefore, it is important to consider the petitions filed from one to 23 days prior to the NLRB’s suspension of petitions, as these elections were also likely impacted by the decision. Counting all petitions filed in this roughly six-week period means that 195 elections petitions with nearly 17,000 workers seeking to unionize were impacted by the NLRB’s suspension of union elections during the pandemic. The affected workers include many who were deemed ‘essential’ during the pandemic. One in six affected workers (16.4%) was in health or emergency services (such as police officers, firefighters, and EMTs).” [Economic Policy Institute, 10/21/20]
Trump’s NLRB Limited Workers’ Rights To Organize By Allowing Employers To Prohibit Where Workers Organized And Making It Harder For Union Organizers To Communicate With Workers
Trump’s NLRB Majority Limited Workers’ Rights To Organize On Company Property. According to Politico, “Trump’s appointees as the majority on the National Labor Relations Board limited workers’ rights to organize on employers’ property, as well as the scope of who should be included in particular bargaining units. Biden’s appointees to the NLRB have subsequently worked to dismantle much of the Trump board’s legacy.” [Politico, 9/21/23]
Trump’s NLRB Ruled That Businesses Could Ban Workers From Using Company Email For Union And Organizing Purposes. According to Bloomberg, “Businesses can ban workers from using company email for union and other organizing purposes, the National Labor Relations Board decided in a Dec. 17 decision. The 3-1 ruling in favor of Caesars Entertainment effectively revokes a right granted in 2014 to workers who have access to employers’ email systems for other reasons, and overturns the 5-year-old Purple Communications Inc. ruling issued under a Democratic-majority board.” [Bloomberg, 12/17/19]
Trump’s NLRB Proposed A Rule To Make It Harder For Union Organizers To Communicate With Workers. According to the Economic Policy Institute, “Under current labor law, workers do not have equal access to information from employers and union representatives during a union election campaign. As noted earlier, employers can inundate workers with anti-union messages through captive audience meetings, one-on-one meetings with supervisors, and workplace emails or bulletins. Meanwhile, employers can keep union organizers out of the workplace so that organizers are unable to talk directly with employees on the job. The Trump NLRB proposed a rule that would make it even harder for union organizers to communicate with workers. For over 50 years, the NLRB has required that an employer must provide a list of all employees eligible to vote in a union election. This list must include employee contact information. Originally, the NLRB required employers to provide the names and home addresses of all eligible voters. In 2014, the Obama NLRB amended this requirement to include available personal email addresses and available personal cell phone numbers. The Obama board concluded that access to employees’ more modern contact information simply modernized the long-standing requirement established in Excelsior Underwear, Inc, the 1966 NLRB case that affirmed the contact information requirement. In July of this year, the Trump NLRB issued a proposed rule that would eliminate the mandatory disclosure of employees’ personal telephone numbers and email addresses during a union organizing campaign. The proposal ignores the reality of the dominant role electronic communication now plays and returns the voter list requirement to outdated means of communication, effectively depriving workers of information on workplace representation.” [Economic Policy Institute, 10/21/20]
Trump’s NLRB Ruled That Off-Duty Employees Did Not Have A Right To Organize In Nonwork Areas Of Their Workplaces. According to the Economic Policy Institute, “First, the Trump board ruled that off-duty employees do not have a right to handbill or engage in other organizing activity in nonwork areas of their workplace if their employer is a contractor at the workplace as opposed to the owner or holder of the property. This ruling, on a case (Bexar) that involved off-duty orchestra musicians leafleting outside a concert hall where they spend 80% of their working hours, dramatically undermines the right of workers to communicate with their co-workers or public supporters. Given the proliferation of contractor relationships and the growth of the “fissured” workplace, the board’s decision is highly destructive of organizing rights for a large segment of the private-sector workforce.” [Economic Policy Institute, 10/16/19]
Trump’s NLRB Ruled That Employers Could Limit Access To Nonwork, Public Spaces. According to the Economic Policy Institute, “Lastly, in a third decision (UPMC), the Trump board changed the rules on access to nonwork, public spaces by ruling that a hospital could ban a union organizer from talking with nurses in the cafeteria at the hospital, even though the area is open to the public.” [Economic Policy Institute, 10/16/19]
Trump’s NLRB Allowed Employers To Discriminate Against Union Solicitation Even As They Allowed Other Groups To Solicit On Their Property. According to the Economic Policy Institute, “In another case (Kroger Limited), the Trump board curtailed the ability of union organizers to leaflet and solicit on an employer’s property even when the employer had allowed the Salvation Army and the Girl Scouts to solicit for their organizations on the employer’s property. It has long been the law that an employer cannot discriminate against the union message if it allows distribution and solicitation on its property by other groups. But the Trump board redefined ‘discrimination’ in the narrowest possible way: Discrimination, in their definition, means giving one group access to the employer’s property for actions ‘similar in nature’ to the union’s activities while denying access to another group for similar actions.’ Because the union was soliciting signatures on a petition and the Salvation Army was soliciting money, the activities were not, in the Trump board’s view, ‘similar in nature,’ even though both activities involved solicitation on the employer’s property.” [Economic Policy Institute, 10/16/19]
Trump’s NLRB Limited Who Could Be In A Bargaining Unit
Trump’s NLRB Majority Limited The Scope Of Who Could Be Included In Bargaining Units. According to Politico, “Trump’s appointees as the majority on the National Labor Relations Board limited workers’ rights to organize on employers’ property, as well as the scope of who should be included in particular bargaining units. Biden’s appointees to the NLRB have subsequently worked to dismantle much of the Trump board’s legacy.” [Politico, 9/21/23]
Trump’s NLRB Made It Easier To Remove An Existing Union
Trump’s NLRB Lowered The Standard For Employers To Remove An Existing Union And Ruled In Favor Of Employers For Setting Handbook Rules. According to Politico, “The Trump-led NLRB also lowered the standard needed for employers to oust an existing union and ruled in employers’ favor on setting handbook rules, a seemingly small issue but one that carries big implications for workplace standards.” [Politico, 9/21/23]
Trump’s NLRB Made It Easier For Employers To Classify Workers As Independent Contractors
Trump’s NLRB Made It Easier For Employers To Classify Workers As Independent Contractors. According to Politico, “The board under Trump further made it easier for employers to classify workers as independent contractors, rather than employees, meaning those workers could no longer be covered by the law protecting employees’ rights to organize or collectively bargain.” [Politico, 9/21/23]
Trump’s NLRB Undermined The Right To Strike. According to the Economic Policy Institute, “The right to strike—the right of workers to withhold their labor in an effort to put economic pressure on their employer to agree with workers’ demands—is at the core of our labor relations system in the United States. Over a period of years, groups of employees at Walmart—the world’s largest company, with 2.2 million employees—engaged in several short strikes to call attention to issues and to pressure Walmart to change its practices. But in July 2019, the Trump board ruled that a group of 100–130 Walmart workers who engaged in a 5–6 day strike to demonstrate at Walmart’s annual shareholders’ meeting were engaged in an ‘intermittent’ strike that was not protected by labor law. Because the Trump board decided that the strike was an unprotected intermittent strike, Walmart faced no legal consequence for retaliating against the strikers, who included 29 workers who were striking for the first time. In determining that the strike was an unprotected ‘intermittent’ strike, the Trump board made up a new legal test, saying that strikes that take place ‘pursuant to a ‘plan to strike, return to work, and strike again’’ are not protected. As detailed by member McFerran in her dissent, the majority undermines what the Supreme Court has called the ‘strong interest of federal policy in the legitimate use of the strike.’” [Economic Policy Institute, 10/16/19]
Two Of Trump’s National Labor Relations Board Appointees Were Management-Side Attorneys Who Wanted To Roll Back Worker Protections. According to Politico, “When President Donald Trump came into office pledging to cut regulations ‘massively,’ he made a point of exempting regulations that protected workers’ health. […] Trump’s deregulatory moves on worker safety are at odds with his public stance as a champion of working class Americans, but consistent with his naming two management-side attorneys bent on rolling back economic protections for workers to the National Labor Relations Board, which regulates labor unions, and with his nominations of two reliably pro-management jurists to a now-Republican-majority Supreme Court that recently dealt a heavy financial blow to public-employee unions.” [Politico, 9/3/18]
Trump Appointees William Emanuel And Marvin Kaplan Worked At Law Firms Representing Large Companies In Employment-Law Cases For Much Of Their Careers. According to the Wall Street Journal, “President Donald Trump selected a second Republican, labor-law attorney William Emanuel, to fill a vacant seat on the National Labor Relations Board, the agency refereeing disputes between unions and businesses. The president announced his intent to nominate Mr. Emanuel late Tuesday. If Mr. Emanuel and Mr. Trump’s earlier choice, Washington attorney Marvin Kaplan, both win Senate confirmation, the board would be controlled by Republicans for the first time in nearly a decade.[…] Mr. Emanuel is a Los Angeles attorney at the Littler Mendelson law firm. Mr. Emanuel has a background similar to the chairman’s: Both spent much of their careers at major law firms representing large companies in employment-law cases. That stands in contrast to Mr. Kaplan, who has close ties with House Republicans, for whom he worked before becoming counsel at the independent Occupational Safety and Health Review Commission.” [Wall Street Journal, 7/28/17]
Trump Appointed Peter Robb As General Counsel To The NLRB. According to the New York Times, “The Biden administration fired the general counsel of the National Labor Relations Board, a Trump appointee deeply unpopular with prominent labor unions, according to a White House official. The term of the current general counsel, Peter B. Robb, was not supposed to expire until November, but the administration has a rarely used right to oust him or her prematurely. The general counsel, a Senate-confirmed official, is charged with enforcing the labor rights of private-sector employees and has substantial discretion over which cases the agency brings.” [New York Times, 1/20/21]
New York Times: Robb Was “Deeply Unpopular With Prominent Labor Unions.” According to the New York Times, “The Biden administration fired the general counsel of the National Labor Relations Board, a Trump appointee deeply unpopular with prominent labor unions, according to a White House official. The term of the current general counsel, Peter B. Robb, was not supposed to expire until November, but the administration has a rarely used right to oust him or her prematurely. The general counsel, a Senate-confirmed official, is charged with enforcing the labor rights of private-sector employees and has substantial discretion over which cases the agency brings.” [New York Times, 1/20/21]
Robb Proposed Demoting Government Officials Who Resolved The NLRB’s Cases. According to the New York Times, “Mr. Robb was a polarizing figure who once proposed demoting the senior government officials who resolve most of the agency’s cases and whom unions accused of seeking to settle a high-profile case against McDonald’s to avoid an adverse decision against the company.” [New York Times, 1/20/21]
Unions Accused Robb Of Seeking To Settle A High-Profile Case Against McDonalds To Benefit The Company. According to the New York Times, “Mr. Robb was a polarizing figure who once proposed demoting the senior government officials who resolve most of the agency’s cases and whom unions accused of seeking to settle a high-profile case against McDonald’s to avoid an adverse decision against the company.” [New York Times, 1/20/21]
New York Times: Before Joining The Trump Administration, Robb “Spent Most Of His Career Representing Employers.” According to the New York Times, “Before taking over as the labor board’s general counsel in 2017, he spent most of his career representing employers. He worked on behalf of the Reagan administration in litigation against the union representing air traffic controllers who illegally went on strike in 1981.” [New York Times, 1/20/21]