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Trump’s NLRB Just Made it Harder for Workers to Unionize

December 14, 2019

By Steve Wishnia

Get ready for more rules that make organizing the workplace even more difficult.

WASHINGTON—Two National Labor Relations Board actions in the past week will further undo Obama-era efforts to enable union organizing.

On Dec. 12, the board voted 2-1 to order an administrative law judge to approve a settlement between McDonald’s and workers who claimed they’d been illegally fired. She’d rejected it last year on the grounds that it didn’t hold the company responsible for labor-law violations at its franchises. On Dec. 13, the NLRB voted 3-1 to approve a revised rule that would lengthen deadlines for union elections in order to give employers more time to contest them.

Lauren McFerran, the sole remaining Obama appointee on the board, was the dissenting vote.

In the McDonald’s case, workers at 29 franchises in six states complained that they’d been fired or punished for taking part in Fight for $15 activities demanding higher pay, and that McDonald’s “possessed and/or exercised” enough control over its franchises’ labor policies to be held a “joint employer” responsible for their actions. In 2018, NLRB general counsel Peter B. Robb brokered an informal settlement that would have given the workers back pay without declaring McDonald’s a joint employer.

NLRB Judge Lauren Esposito refused to approve that deal, saying it would be difficult to enforce and unlikely to remedy the underlying unfair labor practices without including McDonald’s. She said there was clear evidence that “McDonald’s response to the Fight for $15 campaign was formulated and implemented from corporate headquarters,” including helping franchisees hire union-avoidance consultants, suggesting policies, and giving them legal training.

Board members Marvin E. Kaplan and William J. Emanuel countered that the NLRB was likely to change its joint-employer standards, and it was unimportant that the settlement didn’t apply to the new owners of some of the franchises, because the former owners had already complied with most of their obligations. McFerran  accused the majority of ignoring the evidence that McDonald’s had directed the franchises’ anti-union measures.

 “This is an illegitimate decision from the Trump Administration’s compromised NLRB. The Fight for $15 and a Union will forcefully appeal the decision,” the Service Employees International Union-backed campaign responded. “McDonald’s is walking away with a get-out-of-jail-free card after illegally retaliating against low-paid workers who were fighting to be paid enough to feed their families. In addition to the invalid settlement, one of the board members who participated in the decision—William Emanuel—previously worked for one of the very law firms that helped McDonald’s devise the illegal labor practices at issue in this case.”

The board’s majority said that under the “Trump Ethics Pledge,” Emanuel was not required to recuse himself, because his former law firm Littler Mendelson had only advised McDonald’s on how to quash the Fight for $15 campaign, not formally represented it in the proceedings. It added that Emanuel was entitled to participate because he “does not believe” that there was any reason to question his impartiality.

Delayed Votes on Unionization Elections

The elections rule announced Dec. 13 would reverse the NLRB’s 2014 rule that enabled votes on whether to join a union to be held as quickly as 11 days after a petition for representation is filed. That rule was intended to speed up the election process so employers wouldn’t have time to do things like firing union supporters. Opponents called those accelerated votes “ambush elections.” 

The new rule lengthens the deadlines for procedures such as pre-election hearings. It says disputes over the scope of the proposed bargaining unit and voter eligibility should “normally” be litigated at the pre-election hearing and resolved by the NLRB’s regional director before an election is ordered. Those elections, it adds, should not be scheduled less than 20 business days after the order issued, unless both sides agree to hold them sooner.

It also extends the deadline for employers to give unions workers’ names and contact information to five business days after they are requested. The 2014 rule had shortened that deadline from seven calendar days to two, on the grounds that computer technology enabled those lists to be prepared much more quickly than they could in 1966, when the seven-day requirement was set. 

The rule will go into effect in mid-April, 120 days after it is published in the Federal Register.

“These are common sense changes to ensure expeditious elections that are fair and efficient,” NLRB chair John F. Ring said in a statement. “The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.” 

The NLRB also said the rule would “better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues prior to an election.” 

Those translate as giving employers more time to delay the vote by filing lawsuits, and to hold “captive audience” meetings to persuade workers to oppose the union.

“We applaud the NLRB for amending the harmful Obama-era ambush election rule,” Rep. Virginia Foxx (R-N.C.) and Rep. Tim Walberg (R-Mich.), the ranking Republicans on the House Education and Labor Committee, said in a statement. “The controversial 2014 rule drastically altered union election policies, crippling workers’ rights in order to benefit union bosses.” 

The rule “will make it harder for workers who want a union in their workplace to demand a fair election,” Celine McNicholas of the Economic Policy Institute said in a statement. She added that “the NLRB acted without providing the public with notice or the opportunity to comment.”

The NLRB majority said the rule was “exempt from notice and comment” because it was “procedural.”

McNicholas was a coauthor of the report the EPI issued Dec. 11 that found that, according to NLRB records of unfair-labor-practice charges, employers are accused of violating federal law in 41.5% of all union election campaigns, with one out of five campaigns involving a charge that a worker was illegally fired for union activity. “Employers are willing to use a wide range of legal and illegal tactics to frustrate the rights of workers to form unions and collectively bargain,” it said.

“This rule does nothing to address these issues and instead gives employers more time to threaten, coerce, and retaliate against workers trying to organize,” she added.

December 14, 2019

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