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President Donald Trump, who came into office courting labor unions and vowing to stand up for U.S. workers, is taking a major step to alter the direction of federal labor policy, positioning the National Labor Relations Board to overturn a series of high-profile Obama-era decisions.
The moves come on the heels of Trump’s proposed deep cuts to the Labor Department and job-training programs across the federal government. And just last week, the administration disclosed that it opposes the NLRB’s position on whether employers can require employees to waive their rights to bring class-action cases, on which the Supreme Court will hear arguments this year.
Now, by filling two vacant seats and swinging the board from Democratic to Republican control, Trump could reverse these actions:
• A ruling that increased the likelihood companies could be held responsible for labor violations committed by contractors and franchisees.
• A ruling that made it easier for relatively small groups of workers within a company to form a union.
• A ruling that granted graduate students at private universities a federally protected right to unionize.
• Rules enacted by the Obama-era board allowing union elections to proceed on a faster timetable. Many business groups refer to the new approach as “ambush” rules, complaining that employers no longer have sufficient time to make the case to workers against unionizing.
Last Monday, the White House announced the nomination of Marvin Kaplan, a lawyer serving on a federal health and safety commission, to one of two vacant seats on the board, which currently has a 2-1 Democratic majority. A second nomination is expected shortly.
Supporters said the nominations would restore a state of normality to the agency. “I think the Obama labor board was extremely partisan and changed a lot of precedent,” said Matthew Haller, senior vice president for communications and public affairs at the International Franchise Association. “We are hopeful that the board will return to its traditional role as a neutral arbiter, balancing the interests of employers, employees and unions, and not just tipping the scales in favor of collective bargaining.”
Haller cited a report produced by a coalition of which his organization is a member arguing that the board under President Barack Obama operated on a biblical scale, upending a series of precedents whose durations sum to more than 4,000 years.
Skeptics expressed concern that the nominations would undermine the labor rights of the rising proportion of the workforce that is nonunionized, in addition to those who are union members.
“The NLRB is a really important agency for unorganized workers,” said Catherine Ruckelshaus, general counsel of the National Employment Law Project, an advocacy group. “A lot of the workers we work on behalf of benefit from decisions the board has made under the Obama NLRB, which are on the chopping block.”
The Senate might not consider Kaplan’s nomination until the fall.
Kaplan has spent a large portion of his career serving in political roles, including a stint as a counsel for Republicans on the House Committee on Education and the Workforce. The committee held hearings during his tenure scrutinizing prominent NLRB actions in which the witnesses skewed toward business representatives and other skeptics.
Kaplan also had a hand in legislation hemming in the labor board, most prominently the Workforce Democracy and Fairness Act, which would have effectively undone the board’s rules expediting election timetables. The legislation has yet to pass Congress.
“I found him to be very thoughtful and careful,” said Marshall B. Babson, who was a Democratic member of the board under President Ronald Reagan, and has worked for years as a management-side lawyer and interacted with Kaplan. “But he was in a much more partisan role in that position, and he made no bones about it.”
Babson pointed out, however, that it is hardly unprecedented for a congressional aide to ascend to the labor board.
Whatever Kaplan’s appetite for politics, his record appears to place him in the mainstream of Republican labor policy. If Trump’s second board nominee fits the same profile — and the management-side lawyer reported to be in line for the position, William J. Emanuel, appears to do so — they would almost certainly join with the board’s current Republican member, Philip A. Miscimarra, to undo crucial portions of the board’s legacy from the Obama era.
Arguably the most prominent among them is Browning-Ferris, the 2015 ruling broadening the board’s so-called joint employer doctrine. Under the new approach, a company can be considered an employer of a worker employed by another firm, like a contractor or franchisee, even if the original company does not directly control working conditions there.
The decision could have made it easier for workers to unionize and to bargain with the parent company, which, under the previous doctrine, could have simply cut ties with a contractor if workers employed by it were on the verge of unionizing.
Business groups have complained that the decision radically altered the joint employer concept and essentially rewrote the relevant portion of the National Labor Relations Act, something only Congress has the authority to do.
Defenders of the board decision argue that it simply updated the act to reflect the realities of the contemporary workplace, where more and more employers rely on contractors and temporary workers.
The same logic applies, they say, to a variety of other board decisions, like one allowing workers to use an employer’s email network to discuss organizing, and another that allows a union to represent employees who work at a company through a contractor or temp agency in the same group as the company’s permanent employees without first winning approval from both companies, an often insurmountable hurdle. GOP politicians and management-side lawyers have largely opposed both decisions, and the board’s Republican members dissented in all three cases.
“The question is, on the major issues of the day, can we update the act to take account of changes in the labor market?” said Benjamin Sachs, a professor of labor law at Harvard Law School and a former union lawyer. “These guys are on one side; the Obama board was on the other. We’ll see a profound change in direction of labor law.”
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