Trump Makes His Move at the NLRB

[Omaha Steve]

NO LINK. From email.

His new nominees come from the management side or—worse—are suffused with management’s ethos.

Donald Trump is no friend of unions, as his order to unilaterally abrogate the government’s contracts with its federal employees’ unions makes unmistakably clear. But in this, Trump deviates from the traditional Republican opposition to unions only in degree. Ronald Reagan established the party’s savage hostility to independent workers’ organizations when he sacked striking air traffic controllers in 1981. Since then, every Republican president has appointed anti-union and management-side officials to head both the Labor Department and the National Labor Relations Board (NLRB), despite the fact that the NLRB was established to ensure workers’ rights to collective bargaining.


In recent months, the five-member NLRB has been down to a bare two members, since Trump fired Board member Gwynne Wilcox, a Democratic appointee whose term, set by Congress, is supposed to run until August 2028. Trump’s sacking Wilcox violates the law as confirmed by a unanimous 1935 Supreme Court decision that forbade presidents from firing the members of regulatory commissions and boards with fixed terms, save for reasons of misconduct, which neither Trump nor anyone else has alleged is the case with Wilcox. With only two current members, however, the NLRB lacks the quorum required to rule on cases, and some companies have used that as an excuse to not recognize the unions for which their employees have voted to represent them. A number of observers had thought that Trump would make no appointments to the Board, thereby putting it into a de facto if not de jure state of impotence, and enabling businesses to violate labor law to their hearts’ and pocketbooks’ content since there’d be no cop on the beat.


But Trump has opted to go the traditional post-Reagan Republican way instead. Last week, he nominated two new members to the Board, one a longtime management-side labor lawyer, the other a veteran NLRB attorney who has worked as chief counsel for previous and current Republican board members.


The management-side attorney is Scott Mayer, who’s been the chief labor counsel for Boeing since 2022. Before that, he had similar roles at the MGM Resort and IHG hotel chains, and also had a brief tenure at the Morgan Lewis law firm, a resolutely anti-union firm from which Trump’s nominee to be the NLRB’s general counsel, Crystal Carey, also comes. One union observer says Mayer is open to interaction, if not agreement, with unions, citing his attendance at Labor Section meetings of the American Bar Association, which bring together attorneys on both sides of the bargaining table. And at least one union leader who was engaged in bargaining with Mayer while he was representing hotel companies found him both affable and open to compromise—but also notes that what he’ll do on the Board will almost surely “be less about him and more about what the administration wants.”


The other nominee, James Murphy, is more of a known quantity. He’s worked at the Board since 1974, in recent decades writing or editing some notable decisions and dissents issued by the Republican Board members whom he’s staffed. Among those dissents was one by then-Board member Brian Hayes that argued that employers could tightly restrict their employees’ access to their workplace and environs either before or after their shifts, which would have effectively precluded union members and activists from interacting with their fellow workers. The majority opinion had ruled that such a policy “would reasonably lead employees to believe that their Section 7 [i.e., union] activity in the interior areas of [their workplace] is prohibited without prior managerial approval.” One union advocate terms Murphy’s nomination “a scary proposition,” because, if confirmed, “he would hit the ground running because of his knowledge of NLRB staff, systems and processes.”
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During the Biden presidency, the Board majority was pro-union, and general counsel Jennifer Abruzzo was the most ingeniously pro-worker official in the Board’s 90-year history. Some of that Board’s landmark rulings are now likely to be reversed by Trump’s Board, if the Senate confirms his nominees. They include the Biden Board’s ban on “captive audience” meetings, in which employers compelled workers to attend anti-union meetings; and its decision in the Cemex case, which ruled that an employer confronted by a majority of employees who’ve signed union affiliation cards must either recognize the union or have the Board run an election within just two weeks of the cards being presented. If employers then violated labor law during that period, as employers customarily do in the run-up to elections, they would be ordered to recognize the union and go directly into bargaining.

Other Biden-era rulings likely to be reversed are those that recognized the joint-employer responsibilities of companies like Amazon, which contracts out much of its delivery services to small companies, though the drivers wear Amazon uniforms, drive Amazon trucks, adhere to performance standards and rules set by Amazon, and deliver products purchased on Amazon’s website. Biden’s NLRB had ruled that companies, like Amazon, that franchise out part of their core work, are the joint employer of such workers and must enter into collective bargaining with them when they vote to unionize.

It also would not be surprising if a Trump-dominated Board ruled that private universities’ graduate students and postdocs who are employed as teaching and research assistants do not have the right to collectively bargain, which could undo the nationwide wave of grad student unionization in recent years. (My tally of grad student voting over the past several years showed that the aggregate vote in favor of unionizing was 89 percent.)

These Biden Board rulings were made to reverse the diminution of workers’ rights over the past many decades, as employers have routinely violated the National Labor Relations Act, since there’s been no effective penalty for doing so. Those violations are among the primary reasons why the rate of unionization in the private sector has effectively collapsed, from more than one-third of those workers in the mid-20th century to just under 6 percent today.

Assuming Trump’s nominees are confirmed, that decline—which is one of the fundamental reasons why American politics has moved to the right—is almost certain to continue. For that matter, if they’re not confirmed and Trump decides to leave Board membership at two, it will likely continue as well.

The appointment of anti-union members to the Board established to guarantee workers’ rights to union representation has been a feature of Republican administrations for so long that it’s become routine. It shouldn’t be. The proper Democratic response shouldn’t just be to appoint Board members who actually believe in workers’ rights, or to enact legislation that re-enforces those rights after decades of decay. The response that would be more closely equivalent to the Republican appointments would be for the Democrats to put union leaders in charge of, say, the Commerce Department and the Small Business Administration. Imagine the furor that would unleash. Then wonder why there’s no equivalent furor when management folks are put in charge of the NLRB.

~ HAROLD MEYERSON

[4th]

1. Unlike some of the other positions he's adopted as president ...

Trump's history as a union buster goes back to the days when he was managing commercial properties for his old man.