The National Labor Relations Board (NLRB) claims to be an independent agency that protects the interests of workers. Yet the agency lost its veneer of independence under the Obama administration. For eight years, the board’s power and influence expanded as it diminished the rights and freedoms of employees in America’s workplaces. Its rules and regulations stifled economic growth and rewarded union bosses.
Fortunately, the Trump administration and this Congress have taken meaningful steps to rein in the agency with new personnel. The new members are experts in the law who respect labor precedents and seek to strike a balance in deciding workplace disputes and policies.
With both Marvin Kaplan and William Emanuel now confirmed to join the five-member board, and Peter Robb nominated to serve as its general counsel, there is reason to hope that the NLRB will pursue fairness and sanity instead of kowtowing to the president’s favorite special interest.
Kaplan is an experienced lawyer who previously served as the chief counsel of the Occupational Safety and Health Review Commission. In that role, he demonstrated a willingness to look objectively at the facts of each case. With decades of legal experience under his belt, Emanuel has the expertise necessary, together with Kaplan, to make a meaningful impact.
The new NLRB will have a chance to rectify the misguided decisions of the last eight years that have enabled unions to force themselves into workplaces without much regard to the wishes of workers. Top priority must be given to undoing the harmful impact of the Obama board’s “ambush” election rule, and its “joint employer” and “micro-union” decisions.
The ambush election rule shortened the time for union elections from a median time of approximately 34 days to as short as 11 days. This change allows labor organizers to quietly garner support, then ambush worker and employer with a vote before workers have a chance to receive and review critical information about the impact of unionization on their workplace.
The Obama board’s micro-union decision was gerrymandering at the union level.
The decision allows unions to carve out bargaining units so that a small group of employees — hand-picked by labor — can decide whether part of the workplace will be unionized. This runs directly contrary to the National Labor Relations Act and decades of prior law, which insist that the largest possible unit of employees be included in the unionization decision.
The Obama board’s incredible and new joint-employer decision rewrote labor law consistently honored for decades by Democrat and Republican-controlled boards. Now, any company in a business relationship with another company is subject to liability for that other company’s workplace violations, like a subcontractor.
This absurdity is made possible by the board’s adoption of a new “indirect control” standard that is limitless in its application. Take, for example, a company that contracts with another company for janitorial services. If it specifies the hours to be worked and the spaces to be cleaned, it is now the employer of the janitorial company’s employees. This presents an existential threat to various industries, including franchises and the 7.6 million jobs they represent. By making businesses subject to liability for workplace violations of another company far out of their control, the NLRB has put job creators — particularly small businesses — under severe threat.
In addition to having a fully-staffed board, the agency will soon also count a new general counsel, who, unlike that office’s current union-tilted occupant, will restore agency’s credibility by fairly enforcing the law and seeking changes in the law that will further the interests of workers, not undermine them.
During the eight years of the Obama administration, the NLRB pursued a radical activist agenda dictated by Big Labor. Now, with Robb’s nomination as general counsel, and Kaplan and Emanuel’s confirmations as board members, it is time to right the ship and pursue an agenda dictated by the law. The law protects the rights of all workers, including those that oppose unionization, and restores balance to the interpretation and enforcement of our nation’s important labor relations law, the National Labor Relations Act.
Heather Greenaway is a spokesperson for the Workforce Fairness Institute (WFI).