Republicans Will Turn the NLRB into a Force for Union Busting. We Can Turn It Back.

Shaun Richman

On the potential chopping block are the board’s expedited election rules, the organizing rights of graduate employees and workers at charter schools, the rights of subcontracted employees to join their coworkers in a union, the ability of unions to organize smaller units within a larger enterprise and the culpability of a parent company for a subsidiary’s illegal behavior. (Photo by Scott Olson/Getty Images)

Here comes the anti-union crackdown.

Accord­ing to a recent Bloomberg report, Don­ald Trump has sub­mit­ted the names of two anti-union lawyers to the FBI for vet­ting. This is a pre­cur­sor to nom­i­nat­ing them to the Nation­al Labor Rela­tions Board (NLRB) by June to cement a Repub­li­can major­i­ty that will reverse many of the pro-work­er deci­sions and poli­cies that the fed­er­al agency has advanced in recent years.

Mar­vin Kaplan works for the Occu­pa­tion­al Safe­ty and Health Review Com­mis­sion. William Emanuel is a lawyer at the union-bust­ing firm, Lit­tler Mendel­son. Either of these gar­den-vari­ety union-haters could have been appoint­ed by Jeb Bush, John Kasich or what­ev­er bland man in a navy suit the Repub­li­cans might have nom­i­nat­ed if the real­i­ty TV star hadn’t bum­bled his way into the GOP nom­i­na­tion and presidency.

On the poten­tial chop­ping block are the board’s expe­dit­ed elec­tion rules, the orga­niz­ing rights of grad­u­ate employ­ees and work­ers at char­ter schools, the rights of sub­con­tract­ed employ­ees to join their cowork­ers in a union, the abil­i­ty of unions to orga­nize small­er units with­in a larg­er enter­prise and the cul­pa­bil­i­ty of a par­ent com­pa­ny for a subsidiary’s ille­gal behav­ior.

As inevitable as this right turn is for our nation’s work­ers’ rights board, so, too, should be our planned counterattack.

Don’t ignore the NLRB

Last sum­mer, I wrote about the NLRB’s turn towards pro-work­er activism. I not­ed that most unions were slow to notice the change and slow­er still to press an agen­da of legal activism at the board. The next few years will demon­strate why unions tend to view the NLRB as a hope­less venue for work­ers’ rights and a place where orga­niz­ing cam­paigns go to die.

There is a macho com­po­nent to labor’s pref­er­ence to orga­nize and bar­gain with­out appeal­ing to state inter­ven­tion (even when voiced by women!). And it is absolute­ly true that if more unions adhered to an orga­niz­ing mod­el that pri­or­i­tized orga­niz­ing com­mit­tees made up of work­place lead­ers, face-to-face con­ver­sa­tions and esca­lat­ing actions that chal­lenge the boss’ author­i­ty that more unions would win with­out hav­ing to resort to the NLRB as an umpire. But even that kind of orga­niz­ing would only bring a cou­ple thou­sand work­ers into unions — the ones unions are cur­rent­ly spend­ing mil­lions of dol­lars to put orga­niz­ers into the field to orga­nize—not the tens of mil­lions of work­ers that we need to organize.

The plain fact of the mat­ter is that before the Nation­al Labor Rela­tions Act (NLRA) was passed in 1935, unions only had an endur­ing pres­ence in the coal and gar­ment indus­tries and a hand­ful of skilled crafts. Amer­i­can employ­ers have always fought unions with a fierce inten­si­ty. For cry­ing out loud, Andrew Carnegie hired a pri­vate army to gun down his strik­ing employ­ees and their fam­i­lies! Unions need the pow­er of the state to curb the worst abus­es of cor­po­rate America.

And they do them­selves no favors by not tak­ing the NLRB as seri­ous­ly as the right wing con­sid­ers the board. The Wall Street Jour­nal blared, Don’t Ignore the Labor Board” in an edi­to­r­i­al just four days after Trump was sworn in. The right’s think tanks and law firms spent eight years hon­ing their anti-union agen­da and the nation’s lead­ing busi­ness paper was eager to imple­ment it. I wish I could tell you that unions and their allies were devot­ing any­where near the brain­pow­er and enthu­si­asm to the sub­ject of what the next Demo­c­ra­t­ic-major­i­ty NLRB could accomplish.

Part­ly, this is a prob­lem of insti­tu­tion­al mem­o­ry. When Bill Clin­ton took office in 1993, most activists could only recall the NLRB as being an awful adju­di­ca­tor of work­ers’ right for the 12 years of Ronald Rea­gan-George H. W. Bush (and only kind of meh” dur­ing the 1970s).

Take, for instance, the biggest missed oppor­tu­ni­ty of that peri­od: restor­ing the legal right to strike. Employ­ers in the 1980s blew the dust off of an obscure 1938 Supreme Court deci­sion, called NLRB v. Mack­ay Radio & Tele­graph Co., to legal­ly jus­ti­fy fir­ing and per­ma­nent­ly replac­ing work­ers who went on strike. That deci­sion con­tained two mas­sive caveats: that an employ­er could not have union bust­ing as its pri­ma­ry moti­va­tion for per­ma­nent­ly replac­ing the strik­ers and that it would go out of busi­ness if it was not able to replace the strik­ing workers.

The Rea­gan-Bush NLRB did its best impres­sion of a fake wrestling ref­er­ee and looked away, nev­er seri­ous­ly inves­ti­gat­ing an employer’s jus­ti­fi­ca­tion for hir­ing scabs to steal union mem­bers’ jobs. The AFL-CIO pushed a bill in the 1990s to restore the right to strike, but it was killed by a Sen­ate fil­i­buster. I am aware of no sus­tained effort by unions to con­vince a Demo­c­ra­t­ic labor board to revert to the con­sti­tu­tion­al stan­dard and force union-bust­ing employ­ers to prove that they’re not union bust­ing and that they would go out of busi­ness if they couldn’t fire all of their strik­ing employees.

Revers­ing the rever­sals and push­ing forward

Late in its term, the NLRB under Barack Oba­ma actu­al­ly did issue a rul­ing that nar­rowed employ­ers’ abil­i­ty to hire per­ma­nent replace­ments because an employ­er was stu­pid enough to admit that its goal was, in part, to pun­ish the union. That new stan­dard is cer­tain to be reversed or sim­ply ignored by Trump’s NLRB. But it is an exam­ple of the kind of reform that unions should push the board to adapt in the first year of a Demo­c­ra­t­ic administration.

Aside from restor­ing the right to strike, unions should push the next Demo­c­ra­t­ic major­i­ty to move quick­er to restore the Oba­ma board’s poli­cies and prece­dents. How many grad­u­ate stu­dents grad­u­at­ed out of the bar­gain­ing units they were orga­niz­ing, wait­ing for the Oba­ma board’s recog­ni­tion of their rights? Giv­en how naked­ly par­ti­san these actions have become, let’s just get it over with right away.

In terms of a proac­tive agen­da, my favorite reform is to push the NLRB to re-estab­lish an equal time rule for pro-union speak­ers if an employ­er forces employ­ees to attend a manda­to­ry cap­tive audi­ence meet­ing. Such a stan­dard used to exist, and the NLRB is on record since 1966 as invit­ing unions to make a case that it should be restored. (Again, that pesky insti­tu­tion­al mem­o­ry caused a real blind spot.)

Anoth­er thought, while Yale grad­u­ate employ­ees are fight­ing for recog­ni­tion of the micro-units” they won under Obama’s NLRB, is for unions to resume a vig­or­ous pur­suit of bar­gain­ing unit cer­ti­fi­ca­tion any­where that enough work­ers want rep­re­sen­ta­tion. As Charles Mor­ris doc­u­ment­ed in his 2005 book, The Blue Eagle At Work: Reclaim­ing Demo­c­ra­t­ic Rights in the Amer­i­can Work­place, the ear­ly NLRB used to cer­ti­fy minor­i­ty unions as the bar­gain­ing agent for that union’s mem­bers only.

The direc­tive that unions have to win major­i­ty sup­port and must rep­re­sent all work­ers regard­less of their desire to be a part of the union was nev­er the inten­tion of the framers of the NLRA. But that bur­den has become a part of the sys­tem that traps us and restricts our growth and power.

Unions and their allies should be con­ven­ing research teams to plot out a cam­paign of reg­u­la­to­ry and judi­cial activism. That work should begin now.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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