As Media Focuses on Russia Collusion, Trump Is Quietly Stacking the Labor Board with Union Busters

Michael Arria July 14, 2017

President Donald Trump awaits the arrival of Italian Prime Minister Paolo Gentiloni for meetings at the White House in Washington, D.C. on April 20, 2017. (SAUL LOEB/AFP/Getty Images)

It might not get as much press cov­er­age as oth­er Don­ald Trump admin­is­tra­tion calami­ties, but the U.S. pres­i­dent is set to appoint a known union buster to the Nation­al Labor Rela­tions Board (NLRB), push the body to a Repub­li­can major­i­ty and reverse Oba­ma-era pro­tec­tions that ran­kle Big Business.

On July 13, the Sen­ate Health, Edu­ca­tion, Labor and Pen­sions (HELP) Com­mit­tee held hear­ings on Trump’s two NLRB selec­tions and his deputy labor sec­re­tary pick. All three of these men are expect­ed to be confirmed.

William Emanuel, one of Trump’s NLRB appointees, is a man­age­ment-side attor­ney and a mem­ber of the con­ser­v­a­tive Fed­er­al­ist Soci­ety. He is also a share­hold­er of Lit­tler Mendel­son, an infa­mous union bust­ing firm that was most recent­ly brought in by Long Island beer dis­trib­u­tor Clare Rose to nego­ti­ate a con­tract full of pay cuts.

After being select­ed, Emanuel dis­closed 49 for­mer clients and declared he would recuse him­self for up to a year if any of the com­pa­nies found them­selves in front of the NLRB. The list includ­ed mul­ti­ple busi­ness­es that have clashed with the labor board, includ­ing JPMor­gan Chase Bank, Mas­Tec Inc, Nis­san and Uber.

Uber’s ongo­ing skir­mish­es with the NLRB have, per­haps, been the most pub­li­cized. At the end of 2016, the ride-share com­pa­ny bat­tled with the NLRB after the agency sent out sub­poe­nas aimed at glean­ing infor­ma­tion about whether Uber dri­vers were statu­to­ry employees.

In 2016, Emanuel authored an ami­cus brief that defend­ed class-action waivers in employ­ment con­tracts. Work­ers often depend on class actions to fight sex­u­al and racial dis­crim­i­na­tion, and their exis­tence is an impor­tant part of uphold­ing wage laws. The NLRB ruled that such waivers were ille­gal under Obama. 

Emanuel was asked about Lit­tler Mendelson’s anti-union work by Mass­a­chu­setts Sen­a­tor Eliz­a­beth War­ren. You have spent your career at one of the country’s most ruth­less, union-bust­ing law firms in the coun­try,” she said. How can Amer­i­cans trust you will pro­tect work­ers’ rights when you’ve spent 40 years fight­ing against them?”

In response, Emanuel claimed that he would be objec­tive when­ev­er mak­ing deci­sions for the agency.

Emanuel is not the only appointee rais­ing con­cern among work­ers’ rights advo­cates. Mar­vin Kaplan, anoth­er Trump nom­i­nee to the NLRB, is a pub­lic-sec­tor attor­ney and cur­rent coun­sel to the com­mis­sion­er for the Occu­pa­tion­al Safe­ty and Health Review Com­mis­sion. The Kaplan pick excites busi­ness exec­u­tives and their advo­cates, who envi­sioned him help­ing over­turn Oba­ma-era labor regulations.

At the time of the announce­ment, Kris­ten Swearin­gen, chair of the anti-union group Coali­tion for a Demo­c­ra­t­ic Work­place, declared that Mar­vin Kaplan will begin to restore bal­ance to an agency whose recent and rad­i­cal deci­sions and dis­re­gard for long stand­ing prece­dent have inject­ed uncer­tain­ty into labor rela­tions to the detri­ment of employ­ees, employ­ers and the economy.”

The excite­ment is well-found­ed. Kaplan served as coun­sel for Repub­li­cans on the House Com­mit­tee on Edu­ca­tion and the Work­force. The New York Times reports, The com­mit­tee held hear­ings dur­ing his tenure scru­ti­niz­ing promi­nent NLRB actions in which the wit­ness­es skewed toward busi­ness rep­re­sen­ta­tives and oth­er skep­tics.” Kaplan also helped devel­op the The Work­force Democ­ra­cy and Fair­ness Act, leg­is­la­tion that would kill a labor board rule that short­ened the amount of time between when the board autho­rizes a work­place union­iza­tion vote and when the vote actu­al­ly takes place. Since 2014, the num­ber has been set at 11 days. But this act would increase it to at least 35, thus allow­ing more time for union efforts to be squashed. The leg­is­la­tion hasn’t passed in con­gress yet.

Con­cerns do not stop at the NLRB. Trump’s Labor Depart­ment nom­i­nee is Patrick Pizzel­la, a Fed­er­al Labor Rela­tions Author­i­ty Mem­ber who was grilled by Min­neso­ta Sen­a­tor Al Franken on his ties to the infa­mous lob­by­ist Jack Abramoff. Pizzel­la worked with Abramoff dur­ing the 1990s to exempt the North­ern Mar­i­ana Islands from fed­er­al labor regulations.

The Sen­ate has only been in ses­sion for 10 days since the Pizzel­la and Kaplan nom­i­na­tions, and only four days since Emanuel’s. A group of civ­il rights and labor orga­ni­za­tions sent the com­mit­tee a let­ter ask­ing for the hear­ings to be post­poned. Dur­ing her open­ing remarks, Sen. Pat­ty Mur­ray called Trump’s attempt to jam through the nom­i­nees with­out prop­er over­sight unprece­dent­ed.”

Rough­ly 10 work­ers rep­re­sent­ing the pro-labor orga­ni­za­tion Good Jobs Nation stood up dur­ing Thursday’s hear­ing, put blue tape over their mouths and walked out of the room in silent protest. Groups like Good Jobs Nation are con­cerned about a pro-busi­ness major­i­ty in the agency amidst Trump’s pro­posed cuts to the Labor Department.

Trump is putting the NLRB in the posi­tion to undo a num­ber of impor­tant Oba­ma-era labor deci­sions. His NLRB could poten­tial­ly reverse rul­ings that made it eas­i­er for small groups of work­ers to union­ize, estab­lished grad stu­dents as employ­ees, put char­ter school employ­ees under NLRB juris­dic­tion, and held par­ent com­pa­nies joint­ly liable for with fran­chise oper­a­tors who break labor laws. Writ­ing about the immi­nent anti-union crack­down on this web­site in May, Shaun Rich­man wrote, Unions and their allies should be con­ven­ing research teams to plot out a cam­paign of reg­u­la­to­ry and judi­cial activism. That work should begin now.”

Ear­ly in the hear­ing, Wash­ing­ton Sen­a­tor Pat­ty Mur­ray asked Emanuel if he had ever rep­re­sent­ed a union or a work­er. Emanuel explained that he worked exclu­sive­ly for man­age­ment for his entire career. You just don’t do both,” he told her. It’s not feasible.”

Michael Arria is the U.S. cor­re­spon­dent for Mon­doweiss. Fol­low him on Twit­ter: @michaelarria.
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