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Labor board is set for power shift under Trump

Labor board is set for power shift under Trump
© Greg Nash

The balance of power on the nation’s labor law enforcement board is set to shift under President Trump.

Conservatives say the National Labor Relations Board (NLRB) — responsible for enforcing workers’ collective bargaining rights and fair labor practices — has spent the past eight years under former President Obama catering to unions.

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Trump now has the opportunity to shift the balance of power with a new Republican majority on the board that could overturn some of the most controversial rulings lambasted by businesses. The president has already tapped labor attorneys Marvin Kaplan and William Emanuel to the fill the two open seats on the five-member board.

“I think these nominees are going to add fairness and balance to what has been completely partisan policy,” said Shannon Meade, director of labor and workforce policy at the National Restaurant Association.

Groups like the restaurant association are hoping to see the board reverse a set of controversial rulings that redefined joint employers and allowed unions to organize employees in so-called “micro-unions.” The industry has also fought tooth and nail against the board’s 2014 rules to speed up union elections.

“Most damaging has been the overturning of almost 30 years of the traditional joint-employer standard that gave a lot of certainty, clarity and predictability to employees and employers alike,” Meade said. “That has created mass confusion.”

In 2015, the NLRB said a company is considered a joint employer with a contractor if it has “indirect” control over the terms and conditions of employment or has the “reserved authority to do so.” In practice, that means franchisors can now be held responsible for labor law violations committed by their franchisee.

The industry is waiting for the D.C. Circuit Court of Appeals to rule on a legal challenge to the rule.

But Randy Johnson, senior vice president of labor, immigration and employee benefits at the U.S. Chamber of Commerce, noted the majority of NLRB policies come from rulings in cases that are brought before the board, so it has to wait for a case before it can reverse a policy.

“It’s not going to be instantaneous,” he said.

And the cases that come before the board depend largely on the board’s general counsel, Richard Griffin Jr., who was appointed by President Obama in 2013.  

But employee rights groups are quick to point out that Griffin’s term ends in November.

“When Richard Griffin’s term expires, the board will have swung entirely from an Obama board to a Trump board,” said Christine Owens, executive director of the National Employment Law Project.  

“I think the impact will be significant, particularly for low-wage workers in unorganized workplaces and workplaces that are already organized.”

Owens is expecting the change to have a chilling effect on workers’ confidence in successfully organizing and bargaining with their employers.

David Levinson, a Washington, D.C.-based union lawyer and former investigator for the NLRB, shot back at the claims the Obama board catered to unions. He said the goal of the National Labor Relations Act (NLRA), which NLRB was created to enforce, is to encourage collective bargaining.

“So that doesn’t make a lot of sense to say that the NLRB unfairly encourages collective bargaining. That’s what it’s supposed to do,” he said.

Levinson argues that unions have had a hard time publicizing or creating a public understanding of the contractual benefits of union representation, which he said can include paid leave, retirement benefits, promotions on a fair basis and a set wage, among other things.

Peter Schaumber, a former NLRB chairman, said the board could reverse policies through a traditional rulemaking process if it has a valid reason to do so.

Under the NLRA, Schaumber said, the labor board has the authority to issue rules as other independent and federal agencies do, so long as it follows the rulemaking notice and public comment requirements of the Administrative Procedure Act.

“The new board should not only rethink the controversial Obama board decisions, but go back and reconsider longstanding board law,” he said.

The Senate Health, Education, Labor and Pensions Committee is scheduled to consider Trump’s nominees to the board at a confirmation hearing Thursday.

In a statement, the AFL-CIO said it has serious concerns about Kaplan and Emanuel’s commitment to the rights and protections guaranteed by labor laws and enforced by the NLRB.

“The decisions and actions of the NLRB have real consequences for working people,” AFL-CIO President Richard Trumka said on Wednesday.

“A fair and functioning NLRB can protect the freedom of working people to negotiate a fair return on our work so we can provide for our families. A partisan, ideologically driven NLRB can further empower corporations and CEOs to take away our freedoms at work.”