The National Labor Relations Board (NLRB) that regulates labor unions is engaged in something close to civil war as political appointees, career bureaucrats and its inspector general battle one another, according to a report from Politico.
The NLRB was created in 1935 to promote collective bargaining and adjudicate disputes between businesses and workers and, in theory, the NLRB is meant to be insulated from partisan politics. However, the NLRB under President Trump is consumed to the point of paralysis by fights over personnel polices, ethics rules and legal decisions that stem from political disagreements over the proper balance of power between employers and workers.
The in-fighting is not good news for workers who seek NLRB’s assistance to organize unions and increase corporate accountability for labor law violations. On the other hand, the in-fighting is also bad news for employers who wish to discourage unionization and limit corporate liability.
The center of the controversy has pitted civil servants against political appointees, conservatives against liberals, and on occasion, conservatives against other conservatives.
Peter Robb, the NLRB general counsel, arguably the agency’s most powerful position, outraged the NLRB career staff in January by proposing a restructure that would demote regional directors, whom the business sector considers too pro-union. That proposal promoted a revolt by the NLRB’s employee unions. Nearly 400 NLRB employees on March 15 sent a letter to members of Congress that said Robb’s changes “strike us as unlikely to generate cost savings for the agency. What they do seem to likely achieve is the frustration of our efforts to provide members of the public with high quality, thorough investigation,” the NLRB employees wrote.
The second controversy concerns NLRB board member William Emanuel, a Trump appointee with ties to business. Emanuel made a decision to not recuse himself in December from Hy-Brand Industrial Contractors, a pro-business ruling in which the NLRB’s inspector general later concluded Emanuel had a conflict of interest. After the inspector general issued his report, the NLRB vacated the ruling.
The Hy-Brand case narrowed the circumstances under which a business could be classified as a so-called joint employer, jointly liable for labor violations committed by its contractors or franchisees. It reversed an earlier ruling in Browning-Ferris Industries, a 2016 decision by the Obama NLRB, that broadened the circumstances under which a business could be classified a joint employer. McDonald’s was outraged by the ruling because it put them on the hook for maltreatment of employees over whom they did not necessarily maintain direct control.
NLRB general counsel Peter Robb this month issued a legal opinion that said he “does not agree with the conclusions reached in the inspector general report,” and accused three NLRB members of breaking the law. Robb faulted the members, including the Republican chairman, for vacating Hy-Brand without consulting Emanuel and urged the board to reinstate Hy-Brand.
It is highly unusual for an NLRB general counsel to criticize the board’s judgment so harshly. The White House, apparently agreeing with Robb, replaced NLRB Chairman Marvin Kaplan last week with the just-confirmed board member James Ring, although Kaplan will remain as a board member.
Meanwhile, the NLRB’s inspector general David Berry is investigating a second NLRB member, Mark Pearce, who is one of the board’s two Democrats. By law, two of the NLRB’s five board members are chosen by whichever party does not occupy the White House. Berry is filing a complaint accusing Pearce of alerting in advance attendees at an American Bar Association meeting that Hy-Brand would be vacated.
Berry, in turn, stands accused by the National Right to Work Legal Defense Foundation, which is the legal arm of the anti-union National Right to Work Committee, of disclosing confidential board deliberations improperly in his report to Emanuel, and in a follow-up report issued one month later. The National Right to Work Committee is a natural ally to Emanuel, but it has come to regard Emanuel as a problem that must not be replicated in future NLRB nominations, lest pro-labor Democrats gain an upper hand through additional recusals.
Many in Washington believe this “house of cards” could be a long-term game that further destabilizes and undermines the NLRB.
