The Trump NLRB’s Destruction of Workers’ Rights

One of the things that has flown a bit under the radar during the Trump administration, except for labor law nerds, is the Trump National Labor Relations Board’s (NLRB) destruction of workers’ rights. Because the members of the NLRB, along with the General Counsel, who prosecutes violations of the federal labor law, are appointed by the President, there have often been some shifts in the law when the political party in power changes. But the Trump Board has made more changes, more quickly than previous Boards. In addition, the agency has not only reversed Obama Board cases and rules that favored workers’ rights, but also has overturned longstanding decisions that have been in effect for many years. All of the changes make it harder to unionize and harder for nonunion workers to join together collectively to protest their working conditions.

The unionized workforce in the private sector is at a very low level. Not surprisingly, as the number of unionized workers has decreased, income inequality has increased. More money is going to business owners and stockholders and less to workers. See the chart here (Figure I) showing this relationship. When unions represent a significant portion of the workforce, the wages and benefits of all workers increase, as nonunion employers strive to prevent unionization by providing excellent benefits for the employees. When there is little threat of unionization, employers see no need to provide good wages and benefits to avoid being unionized.

The Obama Board decided a number of cases making it easier for workers to unionize.
In those decisions, the Board recognized the changes in the workplace that have occurred in recent years, such as greater use of contractors and leased employees. Where these changes inhibited unionization, the Obama Board interpreted the law to take account of these workplace changes. The Trump Board has systematically reversed the Obama Board’s decisions, using both case law and administrative rules. For example, the Trump Board has made it harder to organize leased employees working for a contractor on another employer’s premises where both employers determine the leased employees’ terms and conditions of employment. And the Trump Board amended administrative rules to make the change, which will make it harder for a future Board to reverse.

Some states, such as California, have made it harder for employers to classify workers as independent contractors, a classification which removes the workers from the protections of most employment laws. The Trump Board, however, made it easier for employers to classify workers as independent contractors, which takes away the protections of the National Labor Relations Act, including the workers’ right to unionize. In addition, the Trump Labor Department is doing the same thing under the Fair Labor Standards Act, removing the eligibility of these “independent contractors” for the federal minimum wage and overtime pay.

The Trump Board has decided a number of cases that make it easier for employers to keep both union organizers and off-duty workers off the employer’s property, even when that property is open to the public. These decisions elevate employer property rights over the legal rights of employees, making it harder for unions to provide information to workers about organizing and harder for workers to communicate with the public about their labor disputes. Additionally, the Obama Board held that employers who allow employees to use the employer’s email system must permit them to use the system for union activity. The Trump Board reversed that rule, another way to frustrate the efforts of employees to communicate with each other about their working conditions.

Contrary to the Obama Board, the Trump Board has upheld the legality of many employer rules that limit the ability of employees to join together to try to change their working conditions. Some examples are confidentiality rules that prohibit disclosing information about disciplinary investigations and rules allowing the employer to search the employees’ property, including their cars if parked in the company parking lot. The Trump Board has also narrowly interpreted the kind of activity that is protected by the law, allowing employers more freedom to discipline or fire employees who engage in either union activity or collective activity in the absence of a union.

The Board has narrowed the coverage of the law, excluding workers and employers that were previously covered, such as certain religious organizations. It is in the process of issuing rules to exclude graduate students who work for private universities from the law’s protections. These students have been unionizing at a rapid pace and their ability to do so under the protection of the law will be removed by the proposed rules.

The Board has changed the Obama Board’s rules which sped up the process for getting an election to vote for union representation. When the employer can drag out the election process, it is harder for the union to win representation rights. And the Board has made it easier for employers to make unilateral changes in working conditions, even when the employees are represented by a union. These are only some of the many changes that have made it harder for workers to gain the protections of the law. The entire list would require a book, or at least a chapter.

The expressed goal of the National Labor Relations Act is to encourage collective bargaining and to protect the rights of employees to join together to balance the power that employers have over employees. The Trump Board, charged with enforcing this law, is undermining it instead. To restore the power of workers, the Board must change, which will happen only with the election of a Democratic president and a majority Democratic Senate that will confirm the President’s appointments to the Board and the General Counsel’s office.

Ann C. Hodges