Trump’s NLRB Is Back in Action After Its Ethics Scandal—And It’s Not Good for Workers

Bruce Vail August 14, 2018

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)

The Trump-dom­i­nat­ed Nation­al Labor Rela­tions Board has been most­ly qui­et this sum­mer, large­ly as the result of an ethics scan­dal that has taint­ed some of its ear­li­er anti-union work. But NLRB ini­tia­tives are qui­et­ly under­way to restart attacks on labor rights, includ­ing an effort dis­closed August 1 that could restrict how work­ers can use email on the job.

The ethics scan­dal, in which Board mem­ber William Emanuel was judged to have vio­lat­ed a pledge not to vote in cas­es involv­ing his for­mer law firm, prompt­ed the agency’s chair­man to order an inter­nal review. The ethics and recusal require­ments” review has been under­way since ear­ly June.

Both Emanuel and Board Chair­man John Ring are Trump appointees, approved by nar­row mar­gins in the U.S. Sen­ate over unit­ed oppo­si­tion from union-friend­ly Democ­rats. One of those Democ­rats, Sen. Eliz­a­beth War­ren of Mass­a­chu­setts, has been an espe­cial­ly harsh crit­ic of Trump’s NLRB appointees. One of her asso­ciates, who request­ed anonymi­ty, tells In These Times that Sen­ate Democ­rats are skep­ti­cal about Ring’s review. It looks to me like a pub­lic rela­tions dodge,” he says. 

Warren’s assis­tant press sec­re­tary told In These Times over email, Any attempt to weak­en the ethics stan­dard … would be a betray­al of the work­ing Amer­i­cans the NLRB is meant to serve.”

Ring can expect close scruti­ny of the ethics review, but is nev­er­the­less mov­ing for­ward with the Trump agen­da to roll back pro-work­er deci­sions issued by the labor board when it was con­trolled by Democ­rats dur­ing the Oba­ma admin­is­tra­tion. In the lat­est exam­ple, the NLRB announced on August 1 that it intends to re-exam­ine the 2014 Pur­ple Com­mu­ni­ca­tions case that upheld the lim­it­ed right of work­ers to use work­place email sys­tems for union-relat­ed communications.

Accord­ing to an offi­cial state­ment, the Nation­al Labor Rela­tions Board invites the fil­ing of briefs on whether the Board should adhere to, mod­i­fy, or over­rule Pur­ple Com­mu­ni­ca­tions, Inc., 361 NLRB 1050 (2014).” In Pur­ple Com­mu­ni­ca­tions, the Board ruled that work­ers have a lim­it­ed right to use the email sys­tems pro­vid­ed by their employ­ers to pro­mote union activ­i­ties, even if the employ­er opposed the union. 

Going beyond email, Ring indi­cat­ed the NLRB wants to re-exam­ine exist­ing rules on the use of all employ­er-owned com­put­er resources.” 

Ring telegraphed the expect­ed out­come of the re-exam­i­na­tion of Pur­ple Com­mu­ni­ca­tions by report­ing that the deci­sion to move ahead was approved by a nar­row 3 – 2 vote of the five-mem­ber board. The split in the vote was strict­ly along par­ti­san lines, with the three Trump Repub­li­cans (Ring, Emanuel and Mar­vin Kaplan) vot­ing to go for­ward and the two Oba­ma Democ­rats (Mark Pearce and Lau­ren McFer­ran) opposed. The two Democ­rats actu­al­ly were both NLRB mem­bers back in 2014 when Pur­ple Com­mu­ni­ca­tions was decid­ed, and had vot­ed to pro­tect union rights at that time. 

In fur­ther plans to attack the pro-labor deci­sions from the Oba­ma era, Ring has made clear that he is not done with the Brown­ing-Fer­riscase, which was at the cen­ter of the Emanuel ethics scan­dal. Forced to with­draw its 2017 deci­sion to reverse Brown­ing-Fer­ris because of Emanuel’s ethics vio­la­tion, the NLRB now intends to attack the same issue — of how the term joint employ­er” will be defined under labor law — by dif­fer­ent means, accord­ing to Ring.

In a June 5 let­ter to War­ren and oth­er sen­a­tors, Ring stat­ed, Can­dor requires me to inform you that the NLRB is no longer mere­ly con­sid­er­ing joint-employ­er rule­mak­ing. A major­i­ty of the Board is com­mit­ted to engage in rule­mak­ing and the NLRB will do so. Inter­nal prepa­ra­tions are under­way, and we are work­ing toward issuance,” of pub­lic notices required to estab­lish the new rules. The board will act to issue the notices as soon as pos­si­ble, but cer­tain­ly by this sum­mer,” Ring wrote.

What Ring did not say is that the joint employ­er issue has tak­en on a spe­cial res­o­nance for con­ser­v­a­tives and busi­ness lob­by­ists, who view the Oba­ma NLRB’s action as a dan­ger­ous step that could lead to increased union­iza­tion. The fast food sec­tor took par­tic­u­lar inter­est, as the fran­chise mod­el for food out­lets as pio­neered by the McDonald’s ham­burg­er chain was seen as new­ly vul­ner­a­ble to union orga­niz­ing under the Oba­ma NLRB.

Ring declined a request from In These Times for a tele­phone inter­view to answer ques­tions about the ethics review and oth­er devel­op­ments at the NLRB. 

Union mem­bers and labor activists shouldn’t expect any pos­i­tive result from the NLRB’s ethics review, or from fur­ther action on Brown­ing-Fer­ris, says Michael Duff, a law pro­fes­sor at the Uni­ver­si­ty of Wyoming who worked at NLRB ear­li­er in his career. The ethics review is win­dow dress­ing, an attempt to sal­vage cred­i­bil­i­ty,” he says, and the board’s hos­til­i­ty to Brown­ing-Fer­ris is already abun­dant­ly clear.”

It’s going to be a tough road at NLRB for unions as long as there as a Repub­li­can in the White House, and espe­cial­ly with Trump,” he says.

Bruce Vail is a Bal­ti­more-based free­lance writer with decades of expe­ri­ence cov­er­ing labor and busi­ness sto­ries for news­pa­pers, mag­a­zines and new media. He was a reporter for Bloomberg BNA’s Dai­ly Labor Report, cov­er­ing col­lec­tive bar­gain­ing issues in a wide range of indus­tries, and a mar­itime indus­try reporter and edi­tor for the Jour­nal of Com­merce, serv­ing both in the newspaper’s New York City head­quar­ters and in the Wash­ing­ton, D.C. bureau.
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