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labor So Long, Labor Rights

Under Trump, the National Labor Relations Board is facing an unprecedented attack.

, Joe Anderson

It’s been six years since Rich Ahearn retired from the staff of the National Labor Relations Board. After working at the agency for more than three decades, including stints as regional director for NLRB offices in three different states, Ahearn stepped down in 2012 to a career as a neutral labor arbitrator.

Then, early this year, Ahearn got word of an impending shakeup at the agency. In a conference call with current NLRB regional directors around the country, general counsel Peter Robb outlined a sweeping plan to restructure the agency, the federal government’s preeminent protector of workers’ rights.

Robb’s plan called for shutting down an unknown number of the NLRB’s twenty-six regional offices in favor of a system of larger regional offices.

Robb’s plan called for shutting down an unknown number of the NLRB’s twenty-six regional offices in favor of a system of larger regional offices. And it would strip the remaining regional directors of their authority to investigate and resolve violations of workers’ rights, instead handing that power over to a half-dozen or fewer midlevel executives.

These proposals were framed in the context of a proposed 9 percent budget cut, reduced NLRB caseloads, and general demands for greater efficiency in government. But that did not sit well with former agency staff, including Ahearn, many of whom learned of the proposal after it was reported by the business news service Bloomberg BNA on January 17.

In early February, fifty-six retired regional directors, including Ahearn, signed a letteraddressed to Robb eviscerating the proposal. They disputed that it would save money or increase efficiency, and warned that it would likely violate federal civil service laws.

Ahearn had never seen anything like Robb’s proposal—or the reaction. In his years at the agency, he had seen other plans to revamp operations, and even helped develop some of them. But none, he says, ever triggered the outcry that this one has. “Not even close.”

NLRB higher-ups have also proposed turning investigations of labor law violations over to less-experienced personnel and ratcheting up already tight timetables. Taken together, these measures point to a further erosion of workers’ rights in an era when diminished union power has already contributed significantly to worsening economic inequality.

Now labor lawyers, union activists, and career professionals are watching to see what happens next. For some, it’s the clearest evidence that under President Donald Trump, the labor board is poised to make a hard right turn—one that could transform the agency created to promote collective bargaining and protect workers into a hollow shell, or worse.

“Morale is not good,” says Irv Gottschalk, retired director of the NLRB’s Milwaukee regional office. “Nobody knows where this is going.”

Created under the New Deal, the National Labor Relations Board is one of a handful of federal agencies charged with protecting workers, and the only that deals specifically with the right to form a union. It was created by the Wagner Act, a 1935 law that explicitly sought to foster collective worker action, not merely protect it.

NLRB officials are to carry out their job impartially, but even so, “the National Labor Relations Act is not neutral,” notes James Gross of the Cornell University Industrial and Labor Relations School and a longtime historian of the board and of U.S. labor law. “It states that it is the policy of the government of the United States to encourage collective bargaining, to encourage workers to join together, and engage in concerted activity to protect their own interests.”

Twelve years after the Wagner Act, the 1947 Taft-Hartley Act—passed over the veto of President Harry Truman—pushed in the opposite direction. It increased regulations on unions, expanded employers’ rights (including granting them “free speech” to campaign against unions), and put the board in charge of enforcing those provisions. But Taft-Hartley didn’t remove the original law’s pro-collective-bargaining premise, Gross says.

To be sure, he notes, there’s a “flip-flopping of doctrine” every time the party in power in the White House changes. Three of the board’s five members come from the same party as the President, while the other two come from the party out of power. Boards with a Democratic majority, Gross explains, tend to focus on the original Wagner Act’s purpose “to encourage collective bargaining.” In contrast, boards with a Republican majority tend to focus on pieces of the Taft-Hartley Act that “promote and protect individual choice,” such as whether employees even want collective bargaining, with the arbitrators remaining neutral.

This pattern of alternately expanding workers’ rights, then giving employers greater leeway to thwart unionization, continued until the election of Ronald Reagan in 1980, Gross says. Then Reagan, the one-time president of the Screen Actors Guild, appointed NLRB chairs who “had as their objective the dismantling of the NLRB,” as part of Reagan’s broader agenda to deregulate the economy. “It was basically saying collective bargaining is a bad thing and the whole idea of the NLRB is a bad thing.”

During Barack Obama’s second term, a series of pro-worker decisions emerged. Now several of those have been reversed or are under threat.

That was the last time the NLRB had been seen as nakedly hostile to the law under which it operates. During Barack Obama’s second term—with a full board in place after several years in which neither George W. Bush nor Obama was able to persuade Congress to fill all five board positions—a series of pro-worker decisions emerged. Now several of those have been reversed or are under threat (see sidebar on page 40).

While board rulings set legal precedents, they represent only a fraction of what the agency does. The vast majority of the work enforcing labor laws begins and ends at the agency’s regional offices—“the lifeblood of the NLRB,” in Gross’s words. “That’s where the action is.”

NLRB regional directors, the target of Robb’s proposal, may be among the most powerful players within the agency’s bureaucracy. They and their staff are the face of the agency, overseeing the day-to-day enforcement of federal labor law.

They supervise union representation elections. They investigate unfair labor practice charges, whether brought by unions or employers, when contract talks break down. They handle technical questions over the extent of a union’s representation in a particular workplace.

The agency’s mission also includes protecting the right of nonunion workers to engage in “protected, concerted activity”—banding together to assert their rights on the job.

All of those cases and more start with the filing of a petition, a charge, or other documents at an NLRB regional office. “Ninety percent of the work the agency does is done in the field, and the headquarters never sees it,” says Martha Kinard, a retired regional director from Fort Worth, Texas, who also signed the letter criticizing the Robb proposal.

When regional directors decide an unfair labor practice charge has enough evidence to support a complaint, that triggers a settlement process and, if a settlement can’t be reached, a trial-like proceeding before an administrative law judge. Settlements account for all but a handful of cases. Kinard says settlements are beneficial to all involved—helping employers resolve disputes quickly and ensuring that harmed workers receive compensation. And as a sign the regional directors are judicious in their conclusions, she adds, if their decision to dismiss a case is appealed, they’re reversed only about 1 to 2 percent of the time.

Kinard, who retired in 2017, fears that if the restructuring proposal goes through, it will mean that “the decision makers are further away and have less understanding of local customs, local traditions, and local practices.”

Regional officials can more easily meet with the representatives of employers and workers to foster settlements, agrees Jennifer Abruzzo, a former deputy general counsel for the NLRB during the Obama Administration who is now special counsel for strategic initiatives for the Communications Workers of America union.

“It could result in a devastating stripping of authority from the NLRB.”

“By centralizing that, you lose a large part of what the agency does well, which is resolve cases in the field,” she says. “You just create complete inefficiencies.”

Cornell’s Gross shares those concerns. “That proposal is so drastic—basically either eliminating regional offices, or creating another layer of supervision that takes authority away from the regional offices—it makes one suspicious at least that maybe what’s going on here is more than a disagreement about budgets and efficiency and caseload,” he says. “It could result in a devastating stripping of authority from the NLRB.”

While Gross is still reserving judgment as to the motives behind the proposals, he says, “If one wanted to go about dismantling the board, that might be a place to start.”

Besides calling for fewer offices and decision makers, Robb’s office is also considering giving lower-ranking regional supervisors greater freedom to dispense with cases and implementing tighter timelines for processing unfair labor practice complaints and union elections, according to a January 29 memo.

Abruzzo worries that shortening timelines could lead to less thorough investigations, making it more difficult to expose systemic labor law violations. Even some management lawyers have questioned whether faster investigations would make it harder for employers to defend themselves against an unfair labor practice charge.

And it’s not as if charges of labor law violations are languishing unresolved. NLRB cases typically take from seven to twelve weeks to complete, reports show, and nine out of ten are concluded in a little over two months. Out of all unfair labor practice charges that are found to have merit, 85 percent are concluded within a year.

In the months since the proposals were aired, NLRB officials have steadfastly told the news media and the labor law bar that no decisions have been made. “We don’t know what they’re going to do,” Steven Swirsky, who represents employers in labor disputes, told Bloomberg Law in March. “If there are cuts we don’t know how they’re going to be applied and what operational, procedural changes that might lead to.”

At the same time, they’ve justified the plans by pointing to proposed budget cuts to the agency, most recently in the form of a White House directive to federal agencies including the NLRB to spend less than what Congress authorized in the spending bill that it passed and Trump signed in March (although the so-called rescission maneuver is reportedly unpopular with Senate Republicans).

Ahearn, Kinard, and other former NLRB employees insist that resistance to the Robb proposals isn’t simply a matter of government bureaucrats being stuck in old ways. The agency has gone through previous downsizings, as caseloads have fallen because fewer workers are represented by unions.

The NLRB, Ahearn says, has often changed how it operates “to make the agency more effective and more efficient. And the career professionals have supported those efforts and engaged in them. But they’ve always been done with a collaborative and collegial approach.”

In the mid-1990s, Ahearn was part of a team that called for giving higher priority to investigations that would have a broader impact instead of imposing identical, one-size-fits-all timetables. Although it departed from decades of tradition, he says, the reform was well-received because people throughout the agency took part in shaping and implementing it.

Based on the reaction Aheam heard from former colleagues, he says, “it doesn’t appear that that type of approach is occurring here.”

That Was Then, This Is Now

Since President Donald Trump took office and elevated the National Labor Relations Board’s Republican wing to the majority, a series of decisions have reversed earlier expansions of workers’ rights:

Employee rules: In a 2004 ruling, the board held that employers could violate the National Labor Relations Act by passing neutral rules that workers could “reasonably construe” as intended to prevent protected concerted activity. A 2017 ruling allowing Boeing to ban cameras in the workplace threw out that interpretation, saying “business justifications”—in this case, concerns about security—could permit rules that would otherwise violate workers’ rights.

Case settlement: In 2016, the NLRB said administrative law judges could not accept settlements in unfair labor practice cases if the board’s general counsel and the charging party objected. In a December 2017 ruling, the Trump board reversed that, contending that judges could sign off on any proposed settlements deemed “reasonable.”

Expired contracts: In a ruling involving Raytheon, the board overturned a 2016 Obama-era ruling, making it easier for employers to again unilaterally change employment policies if a collective bargaining agreement has expired.

Bargaining units: A 2011 ruling made it easier for smaller groups of workers within a larger workplace to join a union and harder for employers to dilute the union vote by expanding the total group voting in the union representation election. Another 2017 ruling reversed that.

—Erik Gunn

Erik Gunn is a longtime Milwaukee-based writer on labor and workplace issues. 

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