Andrew Strom, a union lawyer who contributes to the invaluable On Labor blog, is having trouble making up his mind.
In late August, he nominated a contender for the “Worst Trump [National Labor Relations Board] Decision Yet”: Bexar County Performing Arts Center. Typically, off-duty workers have a right to come onto a business’s premises to organize their peers. Overriding two previous decisions from the Obama era, the board decided that this generally doesn’t apply to people who work on premises their employer doesn’t own. The Bexar County Performing Arts Center was the home base of a unionized symphony but did not employ the symphony; instead, the two were connected through a “licensing arrangement with the foundation that owns the Center.” Therefore off-duty symphony members had no right to distribute leaflets in front of the center.
But after a “flurry” of additional NLRB activity, possibly spurred by a desire to get as much done before next year’s election as possible, Strom has a lot more choices. He’s writing his own flurry of blog posts responding to the rulings. In one of the new cases, the NLRB hints that it wants to overturn Total Security Management — another precedent from the Obama years that limits employers’ ability to discipline workers in the time between a union being organized and the first contract being signed.
We conservatives might disagree with union lawyer Strom on the merits of these cases. We might see these decisions as yet more successful deregulatory efforts from Team Trump. But set that aside for a second and consider the deeper issue: These decisions are a symptom of the dysfunctional way American labor law works.
In theory, private-sector unionization is governed by the National Labor Relations Act, the 1935 law that Congress wrote to handle the issue. But in reality, the law punts many of the most important questions to the National Labor Relations Board, a body that each president gets to stock with a majority of friendly appointees, and that doesn’t have the respect for precedent that a traditional court might. As a result, labor law ping-pongs every time the White House changes hands.
Trump hardly started this. Here, for example, you can read a list of NLRB precedents overturned under George W. Bush. The NLRB also broke with a bunch of previous rulings and longstanding practices during the Obama years; I know because I wrote some of the Internet’s many angry articles decrying these moves.
One of the most egregious and high-profile actions was an assault on Boeing. The company decided to build new capacity in South Carolina, a right-to-work state, instead of expanding capacity in Washington, where a long series of strikes had cost Boeing dearly. The NLRB’s general counsel claimed it was illegal retaliation even to consider those past strikes when deciding where to expand — a policy nowhere to be found in the text of the NLRA or in past NLRB decisions. The outcry over this was so powerful that the board eventually withdrew the complaint.
Another major offensive, this one successful, expanded the “joint employer” rule to cover franchise businesses such as fast-food restaurants, as well as many businesses that employ contractors. The corporate bigwigs at McDonald’s make lots of decisions that indirectly affect McDonald’s workers — which menu items are available, which deals are advertised, etc. — but the restaurants themselves are owned and operated by separate businesspeople. Traditionally, for purposes of labor law, the owners of the individual restaurants were considered the employers of the workers they hired and fired. Obama’s NLRB decided that henceforth these employees would have two “joint” employers, and thus companies such as McDonald’s could be held liable for labor violations at businesses they didn’t directly control.
If you look at National Review’s NLRB coverage from 2009 through 2016 — to say nothing of issues too obscure for a site like ours — you’ll see there’s much more where these abuses came from. The Obama NLRB invented a requirement for employers to post notices informing workers of their labor rights. It held that graduate students at private universities are employees who can unionize. It enabled “quickie” or “ambush” elections, giving employers less time to make their case before workers voted. The board’s general counsel even sought to make it harder for workers to dissolve a union they no longer wanted.
And yes, Trump’s NLRB is giving the system whiplash in the opposite direction. Some say it’s acting even more aggressively than past boards did, though it’s largely focused on undoing the advances of the previous administration.
It’s in the process of overturning the joint-employer rule (which has taken longer than expected thanks to some embarrassing hiccups). It made it harder to unionize “micro-units” of employees, a practice through which a union can slice and dice a workplace if it can’t win an overall election there. It’s working to end ambush elections and make it easier for workers to decertify unwanted unions, too.
You can argue about which way these issues should be resolved. And you can certainly defend the current Republican NLRB for pushing policy in a Republican direction: That’s the way the game is played. But it’s hard to say this is a good overall system for deciding major questions of labor law.
Congress should not have turned this much discretion over to an unelected board. And it’s never too late for it to discuss how to handle these issues, reach a compromise, and write the rules into the law.