Like many other Obama-era realities, the rats may not survive the Trump administration.
In 2011, the National Labor Relations Board ruled that the union tradition of using giant inflatable rodents to protest employers using nonunion contractors is protected free speech.
But Peter Robb, a Trump appointee who took over as the federal agency’s general counsel in November, is looking to reverse the decision, according to NLRB and union attorneys.
That’s just one of several efforts to make the agency more employer-friendly, reflecting the administration’s antipathy to workers’ rights, labor advocates say.
“This has been a terrible 18 months-plus for working people in this country,” said Celine McNicholas, director of labor law and policy at the Economic Policy Institute. “It’s an unprecedented attack on workers.”
Employer-focused groups, on the other hand, say the recent spate of pro-business actions are restoring a balance that was tipped unfairly toward labor under Obama.
“When it comes to NLRB policy, historically it swings like a pendulum whenever a new party comes into power,” said Trey Kovacs, policy analyst at the conservative Competitive Enterprise Institute. “These kinds of policy changes are par for the course . . . of any ordinary Republican administration.”
The Trump administration has reversed dozens of Obama-era initiatives dealing with environmental regulation, health care, immigration, education, and other key policy areas.
Similarly, on employment issues, both sides agree a significant shift is underway, and not just at the NLRB.
Among the Trump administration’s rollbacks is a proposal that would have made more than 4 million additional salaried employees eligible for overtime pay, which is under review and will probably be drastically reduced. The White House also halted a rule requiring large companies to report pay by gender and race to the Equal Employment Opportunity Commission, a policy intended to help close the wage gap. Several health and safety regulations have been delayed or repealed, as well.
But assaults on unions are not going unchallenged. In late August, a federal judge struck down major provisions in three Trump executive orders that would have made it easier to fire federal workers.
At the Federal Labor Relations Authority, which handles labor disputes for government employees, two regional offices, in Boston and Dallas, are set to close this fall, leaving just five nationwide. Senator Edward Markey and other senators from the Northeast wrote to the authority to protest the closings, arguing it would put authority staff farther from the people it serves. Recent cuts to the agency’s travel budget will further hamper the staff’s ability to conduct elections and onsite investigations, the senators noted.
The three-member board, two of whom are Trump appointees, said these two offices had the lowest number of cases of all the regional offices, and, in the case of the Boston office, significantly higher rent.
The president’s first appointee to the Supreme Court, Neil Gorsuch, has already helped tip the scales against workers as part of the majority in two rulings. In the Janus decision, the court reversed 40 years of precedent to find that public sector unions can’t charge nonmembers fees, despite the fact that they benefit from union protections. In another major decision, the court ruled that companies can force workers to settle disputes through private arbitration, rather than joining together to take legal action.
That decision has already prompted the NLRB to reconsider earlier findings that protected workers’ rights to file class-action lawsuits.
Trump’s latest Supreme court nominee, Brett Kavanaugh, whose confirmation hearings start this week, is expected to further solidify the court as pro-employer.
And at the NLRB, which protects the rights of private sector employees to organize and improve working conditions, the changes have been coming hard and fast.
Robb, who was a Vermont employment lawyer, now oversees the agency’s 26 regional offices that investigate and prosecute violations of the National Labor Relations Act, independent from the board. The five-member board, three of whom were appointed by Trump, decides high-profile cases that rise up through the appeals process. (One of the two Democrats’ terms just expired, but Trump has nominated him for another term.)
Robb, who worked on the Reagan administration’s litigation that led to the firing of more than 11,000 union air traffic controllers for staging an illegal strike in 1981, didn’t waste any time setting a business-friendly agenda.
On Dec. 1, two weeks after he started, he issued a memo calling for a review of cases that involve significant legal issues over the last eight years that overruled precedent, as a way to provide the board with an “alternative analysis.”
Twelve days later, Democratic Senators Elizabeth Warren and Patty Murray wrote to Robb about the memo.
“The Trump administration has a troubling track record of undermining worker protections,” they wrote, “and we are deeply concerned that your policy changes will ultimately enable bad actors to violate workers’ fundamental labor rights with impunity.”
The board has already overturned several major decisions, including a 2011 “micro-unit” standard that made it easier for a union to form a bargaining unit from a narrow slice of a workforce — deli workers at a grocery store, for example.
The board also revoked a controversial 2015 joint employer ruling that made it easier for corporations to be held responsible for the actions of its subcontractors or franchisees. That decision was quickly reinstated after concerns were raised about a board member’s conflict of interest, but the board has since announced it intends to create a joint employer rule, an unusual move that will almost certainly go employers’ way.
An Obama-era decision to speed up union elections, seen as pro-labor because companies don’t have as much time to dissuade employees from voting for it, is under scrutiny, as well.
The NLRB declined to comment on changes at the agency.
Hugh Murray, a management-side labor lawyer at McCarter & English in Hartford, said that the pendulum swing is more aggressive than in previous administrations, but only because it had swung so far in the opposite direction under Obama.
And because Obama was hamstrung by a recalcitrant Republican Congress, he issued a number of pro-worker rules by executive order, which are easier to overturn, Murray noted. That has allowed Trump to make changes quickly, including revoking an order requiring businesses bidding for federal contracts to reveal past labor violations.
“So far, it’s gone further because Obama went further,” Murray said.
As federal labor protections soften, state and local governments could step in. The Massachusetts Senate, for instance, passed legislation that would have created a workaround to the Supreme Court’s Janus decision. The last-minute bill, which the House didn’t take up before the term ended, would have allowed unions to charge nonmembers to represent them in grievances and arbitration hearings and to provide additional services to paying members.
Some unions are avoiding the NLRB altogether, knowing that if their case goes before the Trump-appointed board it could overturn worker-friendly precedents. Unions seeking to organize graduate students at private universities, for instance, who were granted the right to do so in a 2016 NLRB ruling, have been trying to pressure universities to voluntarily recognize bargaining units without going through an NLRB-sanctioned election.
Several worker advocacy groups have seized the moment to propose major overhauls to labor law, including the Labor and Worklife Program at Harvard Law School, which is exploring policy proposals to reimagine collective bargaining by sector instead of by employer, and to give workers seats on corporate boards, among other recommendations.
It’s not just a reaction to Trump, said Sharon Block, who runs the center with labor professor Benjamin Sachs, though she added he’s certainly making matters worse.
“The little power that workers have, this administration seems to be bound and determined to diminish even more,” said Block, who served on the NLRB board and was a labor adviser to President Obama. “The time for tinkering around the edges has past. What we really need is fundamental change.”