thenation--2020-09-07--How Workers Can Achieve Real Power

How Workers Can Achieve Real Power

Our economy is out of whack , and workers know it .
Their wages are flat , CEO pay continues to skyrocket , and a pandemic has left tens of millions of workers unemployed and dramatically undermined job security .
Income inequality—the gap between the haves and the have-nots—continues to grow , and workers lack the bargaining power to meaningfully address it .
There is broad recognition among experts that the decline in union density is a major contributor to the increase in income inequality .
When unions were stronger , workers had the power to demand higher wages and @ @ @ @ @ @ @ of workers covered by a union contract has declined—it ’ s now below 7 percent of the private-sector workforce—workers have less power , their wages have stagnated , and income inequality has worsened .
Why has union density fallen to this level ?
The biggest reason is that our labor law , adopted in 1935 and not significantly amended since 1959 , is too weak , makes it too hard for workers to organize , and gives employers too much leeway to interfere in workers ’ organizing campaigns , including by subjecting workers @ @ @ @ @ @ @ against the union .
There are literally no penalties against employers for violating the law and interfering with workers ’ rights .
The decisions and actions of the Trump National Labor Relations Board have made matters far worse , but the truth is that our law is outdated and not up to the task at hand .
The failure of the law to protect and promote workers ’ right to organize has led some worker advocates to call for a new labor law system in the United States called sectoral bargaining .
Under @ @ @ @ @ @ @ and employers in a sector or industry meet and negotiate wage and benefit standards that cover all employers and employees in the sector or industry , regardless of whether workers of a particular employer have voted to unionize .
Worksite unions , where workers choose to form them , continue to bargain over worksite-specific issues and represent workers when there are disputes at a particular workplace .
Sounds great , right ?
Why not have a system where workers are automatically covered by wage and benefit packages negotiated by unions and employers at @ @ @ @ @ @ @ questions that would need to be addressed in designing a sectoral bargaining system .
Who decides on defining the contours of the sectors or industries that are bargaining ?
Who decides which unions sit at the table to bargain for workers—and how do we prevent employers from setting up sham unions , or playing favorites with a weak union ?
What happens if the parties can ’ t reach agreement ?
How would the system work in an anti-worker administration ?
( Do we really want Gene Scalia in charge of a sectoral @ @ @ @ @ @ @ prevent the minimum floors being bargained at the national level from becoming the ceiling ?
And how do we resolve the tension between building a national , government-led system for setting wages and benefits and at the same time trying to generate and sustain interest among workers to form their own worker-driven unions at the local level ?
Fortunately , we don ’ t actually need to resolve these issues .
That ’ s because we can achieve a similar result—collective bargaining between unions and employers that sets wage and benefit standards for @ @ @ @ @ @ @ of workers to form unions at their workplaces .
We can build a sectoral bargaining system—and strong , democratic , worker-driven unions—from the ground up .
If the law was changed so that workers truly had a free and fair choice to organize at their workplace without threats or interference from their employers , tens of millions of workers would form unions .
Survey research shows that 48 percent of workers without a union would choose to join one if they could .
That translates into 60 million workers .
Adding 60 million @ @ @ @ @ @ @ 16 million ) currently in unions .
If workers had those kinds of numbers—or even half of that—and were given the right to insist that their employers participate in multi-employer bargaining to set wage and benefit standards , our labor law system would begin to look more like sectoral or industry bargaining .
We know from history , and even from current experience , that when unions are strong , they bargain broadly and set industry standards that cover all workers in the industry , not just at a particular firm .
Look @ @ @ @ @ @ @ by the Teamsters union in the 1960s to cover trucking—an agreement that set standards for the industry and was then undermined by deregulation .
Look at the success of SEIU Local 32BJ in organizing and setting wage and benefit standards for building-service workers up and down the East Coast , or the success of UNITE-HERE in setting standards in the hotel industry before the Covid-19 pandemic wreaked such havoc on the industry .
( Full disclosure : I co-authored a report on unions bargaining beyond the worksite for the Economic Policy Institute .
@ @ @ @ @ @ @ from the ground up by building strong unions , we will at the same time be building a massive labor movement—a movement of workers who will organize and advocate and vote—who will elect representatives who care about working people ’ s issues and who will be held accountable by the workers who elect them .
Research consistently demonstrates that union households are more engaged in issues and elections than the overall electorate .
Under Trump the NLRB Has Gone Completely Rogue A major piece of labor law legislation—the Protecting the Right to Organize @ @ @ @ @ @ @ Representatives earlier this year and is ready for Senate action .
Joe Biden strongly supports it .
Donald Trump says he would veto it .
The PRO Act isn ’ t everything , but it ’ s a strong and comprehensive bill that would remove some of the major impediments to workers ’ efforts to organize .
It is teed up and ready to go , and its passage should be a top priority for the new Biden administration .
That would be a big first step at building worker bargaining power from @ @ @ @

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Our economy is out of whack, and workers know it. Their wages are flat, CEO pay continues to skyrocket, and a pandemic has left tens of millions of workers unemployed and dramatically undermined job security. Income inequality—the gap between the haves and the have-nots—continues to grow, and workers lack the bargaining power to meaningfully address it.
There is broad recognition among experts that the decline in union density is a major contributor to the increase in income inequality. When unions were stronger, workers had the power to demand higher wages and better benefits. But as the percentage of workers covered by a union contract has declined—it’s now below 7 percent of the private-sector workforce—workers have less power, their wages have stagnated, and income inequality has worsened.
Why has union density fallen to this level? The biggest reason is that our labor law, adopted in 1935 and not significantly amended since 1959, is too weak, makes it too hard for workers to organize, and gives employers too much leeway to interfere in workers’ organizing campaigns, including by subjecting workers to mandatory meetings where the employer rails against the union. There are literally no penalties against employers for violating the law and interfering with workers’ rights. The decisions and actions of the Trump National Labor Relations Board have made matters far worse, but the truth is that our law is outdated and not up to the task at hand.
The failure of the law to protect and promote workers’ right to organize has led some worker advocates to call for a new labor law system in the United States called sectoral bargaining. Under one formulation of sectoral bargaining, unions and employers in a sector or industry meet and negotiate wage and benefit standards that cover all employers and employees in the sector or industry, regardless of whether workers of a particular employer have voted to unionize. Worksite unions, where workers choose to form them, continue to bargain over worksite-specific issues and represent workers when there are disputes at a particular workplace.
Sounds great, right? Why not have a system where workers are automatically covered by wage and benefit packages negotiated by unions and employers at the national level?
There are tough questions that would need to be addressed in designing a sectoral bargaining system. Who decides on defining the contours of the sectors or industries that are bargaining? Who decides which unions sit at the table to bargain for workers—and how do we prevent employers from setting up sham unions, or playing favorites with a weak union? What happens if the parties can’t reach agreement? How would the system work in an anti-worker administration? (Do we really want Gene Scalia in charge of a sectoral bargaining system?) How do we prevent the minimum floors being bargained at the national level from becoming the ceiling? And how do we resolve the tension between building a national, government-led system for setting wages and benefits and at the same time trying to generate and sustain interest among workers to form their own worker-driven unions at the local level? Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann
Fortunately, we don’t actually need to resolve these issues. That’s because we can achieve a similar result—collective bargaining between unions and employers that sets wage and benefit standards for their industry—by strengthening and expanding the ability of workers to form unions at their workplaces. We can build a sectoral bargaining system—and strong, democratic, worker-driven unions—from the ground up. Current Issue View our current issue
If the law was changed so that workers truly had a free and fair choice to organize at their workplace without threats or interference from their employers, tens of millions of workers would form unions. Survey research shows that 48 percent of workers without a union would choose to join one if they could. That translates into 60 million workers.
Adding 60 million unionized workers would quintuple the number (16 million) currently in unions. If workers had those kinds of numbers—or even half of that—and were given the right to insist that their employers participate in multi-employer bargaining to set wage and benefit standards, our labor law system would begin to look more like sectoral or industry bargaining. We know from history, and even from current experience, that when unions are strong, they bargain broadly and set industry standards that cover all workers in the industry, not just at a particular firm. Look at the legendary Master Freight Agreement negotiated by the Teamsters union in the 1960s to cover trucking—an agreement that set standards for the industry and was then undermined by deregulation. Look at the success of SEIU Local 32BJ in organizing and setting wage and benefit standards for building-service workers up and down the East Coast, or the success of UNITE-HERE in setting standards in the hotel industry before the Covid-19 pandemic wreaked such havoc on the industry. (Full disclosure: I co-authored a report on unions bargaining beyond the worksite for the Economic Policy Institute.)
And if we build this system from the ground up by building strong unions, we will at the same time be building a massive labor movement—a movement of workers who will organize and advocate and vote—who will elect representatives who care about working people’s issues and who will be held accountable by the workers who elect them. Research consistently demonstrates that union households are more engaged in issues and elections than the overall electorate. More From Lynn Rhinehart Biden Is Rebuilding the National Labor Relations Board April 6, 2021 The Amazon Workers’ Campaign Shows the Need for Labor Law Reform February 25, 2021 Under Trump the NLRB Has Gone Completely Rogue April 7, 2020
A major piece of labor law legislation—the Protecting the Right to Organize (PRO) Act—passed the House of Representatives earlier this year and is ready for Senate action. Joe Biden strongly supports it. Donald Trump says he would veto it. The PRO Act isn’t everything, but it’s a strong and comprehensive bill that would remove some of the major impediments to workers’ efforts to organize. It is teed up and ready to go, and its passage should be a top priority for the new Biden administration. That would be a big first step at building worker bargaining power from the ground up.


thenation--2020-09-07--Trump’s National Labor Relations Board Is Sabotaging Its Own Mission

On a June afternoon in 2019 , in front of a statue of George Washington at Federal Hall in New York City ’ s financial district , more than 100 construction workers and activists gathered for a First Amendment rally .
Amid chants of “ Free speech , free speech !
” an approximately 15-foot-tall gray inflatable rat with glaring red eyes bobbed in the sun .
The workers , mostly members of Laborers Local 79 , weren ’ t defending speech , exactly .
Rather , they were demanding their right to display Scabby the Rat , the mascot @ @ @ @ @ @ @ bosses.1 This article was reported in partnership with Type Investigations , with support from the Puffin Foundation .
The challenge to these workers came from a seemingly unlikely quarter : the National Labor Relations Board , a federal agency responsible for interpreting and enforcing labor law .
The NLRB ’ s general counsel , Peter Robb , had launched a legal assault to ban Scabby from a nonunion construction site at a Staten Island supermarket .
Arguing that its menacing presence amounted to illegal protest activity against a “ neutral ” business under @ @ @ @ @ @ @ , who was appointed by President Donald Trump in 2017 , sought a federal court injunction that could effectively outlaw Scabby across the country.2 On the steps outside the hall where the Bill of Rights was ratified , Chaz Rynkiewicz , Local 79 ’ s director of organizing , took the microphone and denounced Robb as “ an anti-union lawyer that , before he was head of the NLRB , worked for corporations to break unions… .
If you know any Trumpsters out there , let them know , educate them .
They @ @ @ @ @ @ @ t love [ their ] union and love Trump.
” 3 So far , Scabby has survived the legal attacks .
In July 2019 , a federal district court judge denied Robb ’ s request for a preliminary injunction in the Staten Island case .
But the giant rat remains under threat : An earlier case against Scabby in Philadelphia is still pending before the NLRB.4 The zeal with which Robb has pursued the cherished totem of union solidarity reflects how far the NLRB ’ s agenda has shifted under Trump .
A @ @ @ @ @ @ @ on interviews with more than 25 labor advocates , attorneys , and current and former NLRB staff members—reveals that the federal agency that ’ s supposed to protect union rights is instead championing the interests of management.5 The NLRB is tasked with administering union elections and processing unfair-labor-practice cases under Section 7 of the National Labor Relations Act , which protects “ concerted activity , ” the collective action that workers take to try to improve conditions on the job .
Over the years , the NLRB ’ s rulings have tended to @ @ @ @ @ @ @ depending on which party holds the White House.6 But with management-side lawyers dominating the agency , which is run by a five-seat board and a general counsel , labor advocates say the NLRB is more stridently anti-labor than ever before and is sabotaging its own mission .
Not only has Trump ’ s board consistently sided with bosses , but career civil servants at the NLRB ’ s regional branches say they are being deprived of funding and staff.7 Even before Trump ’ s appointees began to undermine the agency , labor organizers @ @ @ @ @ @ @ often require years of litigation , and remedies typically entail only back pay or reinstatement after a worker is unlawfully fired—not penalties stiff enough to deter employers from abuse.8 After the rally in New York , Rynkiewicz told me , “ As an organizer for 20-plus years , I ’ ve never viewed the NLRB as an ally of labor .
It ’ s a shame to say.
” 9 Just before Scabby was deflated , Rynkiewicz added , “ The right-wing anti-union people want to portray the NLRB as a friend of @ @ @ @ @ @ @ a good day… .
When you have the board ’ s majority put in place by the Democrats , you get nothing .
When you have the board ’ s majority put in by the Republicans , you get an attack.
” 10 The shortcomings of the NLRB are to some degree baked into its structure .
During the labor uprisings of the 1930s , police and the National Guard members frequently killed striking workers .
Established by the National Labor Relations Act in 1935 , the NLRB was designed to maintain labor @ @ @ @ @ @ @ into the legal arena .
The act , a compromise between labor and management , forced companies to bargain with unions , but it also excluded whole categories of workers , such as farm laborers , and effectively limited collective bargaining to individual companies , not whole industries or sectors.11 After World War II , conservative majorities in Congress gutted the National Labor Relations Act with the Taft-Hartley Act of 1947 , which expanded employers ’ power to suppress workplace organizing , allowed the government to break up strikes deemed “ national health @ @ @ @ @ @ @ anti–Communist Party pledges from union officers , which led organized labor to purge many of its most militant union members.12 Over the next several decades , organized labor withered in numbers and political clout .
With private sector union membership now down to about 6 percent , workers and unions are often left seeking justice through this byzantine , Depression-era judicial apparatus.13 The NLRB ’ s board is currently dominated by three conservative Trump appointees , two with ties to law firms that have represented some of the country ’ s largest employers @ @ @ @ @ @ @ member William Emanuel are lawyers who defended companies such as Marriott International and Uber , respectively .
A third member , Marvin Kaplan , previously worked on labor policy as a counsel for House Republicans .
The board ’ s lone Democrat , Lauren McFerran , left when her term expired in late 2019 but was reappointed in August .
Neither the Trump administration nor the Senate has moved to fill the board ’ s fifth seat , which has been vacant since August 2018.14 Robb , the NLRB ’ s general counsel @ @ @ @ @ @ @ is a veteran management-side lawyer who worked with the Reagan administration to bust the air traffic controllers ’ union .
While the NLRB ’ s regional branches process most of the unfair-labor-practice charges—handling investigations , adjudications , and settlements—Robb shapes the agenda for the board , which rules on complaints appealed from the regional level , setting precedents for how the National Labor Relations Act is applied and enforced.15 Shortly after being sworn into office in November 2017 , Robb set about reversing the legacy of the previous board , which had incrementally @ @ @ @ @ @ @ series of sweeping decisions , the board scrapped rules instituted under Barack Obama barring workplace policies that impinge on the right to organize , axed a prohibition against employers making unilateral changes to collective bargaining agreements , and overturned a ruling allowing workers to form smaller bargaining units within a larger workforce.16 One of the board ’ s most influential decisions dealt a severe blow to efforts to extend collective bargaining rights for contracted workers .
Under Obama , the NLRB loosened the joint employer standard , which determines whether a company can @ @ @ @ @ @ @ hired through a contractor , such as a franchise operator or subcontracted cleaning agency .
In 2015 , the board ruled that a company could be considered a joint employer if it exercised “ indirect control ” over workers or had the ability to exercise control.17 The Trump board restored a more restrictive joint employer standard—first through a 2017 decision , which the board vacated because of a conflict-of-interest issue , then in 2020 through the administrative rulemaking process .
The move upended a multiyear legal challenge brought by McDonald ’ s workers @ @ @ @ @ @ @ enough influence over its franchisees to be considered a joint employer and was therefore liable for retaliation against workers involved with the Fight for $ 15 , the campaign for a $ 15 hourly minimum wage and a union.18 The board ’ s initial moves to nullify Obama-era provisions have been followed by rulings that limit workers ’ rights far beyond those under previous Republican administrations .
In August 2019 it reduced workers ’ rights to protest on private property , determining that management could block musicians with the San Antonio Symphony from @ @ @ @ @ @ @ was not owned by their employer .
It also excluded faculty at religious colleges and universities from its jurisdiction and allowed bosses to bar workers from organizing on company technology and equipment , including the use of e-mail.19 In recent months , the board has also used its rulemaking process to roll back pro-worker regulations , especially in regard to union elections ; make it easier for employers to interfere with voting ; weaken rules that protect unionizing construction workers ; and shorten the time that employers must wait before petitioning to oust @ @ @ @ @ @ @ how many areas of the law , how many precedents they ’ ve managed to overturn , ” said Wilma Liebman , a chair of the NLRB under Obama .
“ And they just kind of snap their fingers and do it , in my view , with little regard for the quality of the legal thinking or reasoning , reaching out to decide issues that aren ’ t before it.
” 21 Some NLRB staffers fear that Robb is making it more difficult for them to scrutinize employers .
In June he @ @ @ @ @ @ @ procedures .
In some cases , bosses can now preview recordings that could be used as evidence and be present when former supervisors testify against them .
NLRB spokesperson Edwin Egee told The Nation and Type Investigations that the “ dissemination of information during the investigation ” enables the agency to “ more fairly enforce the [ National Labor Relations Act ] ” and “ aid settlement efforts.
” But labor advocates say the measures discourage whistleblowers and compromise the integrity of cases.22 The NLRB ’ s rightward shift under Trump has deterred @ @ @ @ @ @ @ agency .
A current NLRB staff member , who requested anonymity to avoid retaliation , said she has observed unions opting to settle to avoid triggering an unfavorable ruling .
Unions , she said , “ are just less likely to turn to us because they…don ’ t want to create bad law.
” 23 Several graduate student employee unions , including at Boston College , withdrew their cases in 2018 to prevent the board from overturning the Obama-era precedent that supported the collective bargaining rights of graduate workers at private institutions .
@ @ @ @ @ @ @ the rights of graduate student workers at private universities nationwide , ” said Sam Levinson , a Boston College graduate student worker , in an e-mail .
“ The current NLRB has consistently chipped away at the collective bargaining rights for which the labor movement has fought for decades .
We decided to organize and build power , instead of allowing Boston College to put the fate of our rights into the hands of Trump and his appointees.
” 24 Even though the petition was dropped , the board initiated a rulemaking process @ @ @ @ @ @ @ from graduate student employees—another attempt to change policy through an administrative rule change rather than case law.25 For career staffers who joined the NLRB to help enforce the rights of workers , the Trump board has been demoralizing .
“ There ’ s a host of decisions that have come out that are destructive of workers ’ rights , and it ’ s an extremely sad time to be at this agency and work here , ” said a second NLRB staff member , who also requested anonymity .
“ The only hope @ @ @ @ @ @ @ turn before too much damage is done.
” 26 In early 2018 , according to Bloomberg Law , Robb floated a proposal to centralize case-handling authority under officials who report directly to him .
The NLRB ’ s 26 regional directors protested , calling the move a unilateral concentration of authority by a Trump appointee .
And Senator Patty Murray ( D-Wa . )
and Representative Rosa DeLauro ( D-Conn. ) sent a letter expressing concern .
At the time , an NLRB spokesperson told Bloomberg Law that “ no plan involving the @ @ @ @ @ @ @ been developed.
” Facing congressional scrutiny and a backlash from staff , Robb seemingly shelved the idea.27 But in August he appeared to have revived his consolidation efforts with a plan to combine case handling across several branches in Los Angeles , Seattle , San Francisco , Oakland , Denver , and Phoenix .
Democrats in Congress criticized the proposal as a backdoor attempt to undercut the regional directors .
Egee said the plan did not constitute a reorganization of the local offices and was merely a “ resource sharing ” initiative intended @ @ @ @ @ @ @ between regions.28 In 2018 , Robb antagonized staffers with a memo recommending dozens of ways to speed up investigations .
Although Egee said the guidance was drawn “ directly from NLRB employees , ” the NLRB Union , which represents workers in the regional offices , responded by arguing that it will “ result in a reduction in quality , not an improvement.
” 29 Staffers say they are under pressure to process cases quickly , prioritizing efficiency above all else .
Meanwhile , the workforce has shrunk .
While the number of @ @ @ @ @ @ @ , Robb exacerbated that trend by offering buyouts and early retirement incentives to eligible employees , according to the NLRB Union .
The result , it said , has been a more than 20 percent reduction in staffing since fiscal year 2017—from more than 900 to about 717 full-time equivalents as of June 30 .
( Egee cited different statistics , stating that the total number of employees has declined less than 4 percent since fiscal year 2018 . )
30 During fiscal year 2019 , according to the NLRB ’ s annual @ @ @ @ @ @ @ initial filing to judgment for unfair-labor-practice cases fell from 90 to 74 days .
Yet the agency ’ s funding has shrunk by an inflation-adjusted 15 percent since fiscal year 2011 , according to the NLRB Union.31 A third NLRB field staffer said being asked to work faster with fewer resources feels like an attack on the agency .
“ If you are trying to [ end ] the administrative state and you want to get rid of the agencies you like the least—ours is probably one of them—then this is what you @ @ @ @ @ @ @ , and you decrease morale.
” 32 Some NLRB employees have left the agency on principle , according to another current staff member .
“ It is really tough when you believe in Section 7 rights and you have to write [ a legal rationale ] that you believe is eroding them , ” the person said , noting that the NLRB was losing both experienced senior staffers and talented younger lawyers .
“ We ’ ve had some incredibly bright attorneys hired in the last five or so years who are jumping @ @ @ @ @ @ @ labor law .
They ’ re still in the fight .
But they ’ re not going to fight from within the board.
” 33 The agency ’ s two staff unions—the NLRB Union and the NLRB Professional Association , which represents employees at the headquarters—have been waging a modest resistance .
They have accused the board of understaffing the agency , refusing to bargain in good faith over the Professional Association ’ s contract , and letting millions of dollars in the agency ’ s budget go unspent .
( The board @ @ @ @ @ @ @ underspending to contracts that were not completed or came in under budget . )
34 Last November , the unions held a rally at the NLRB ’ s Washington , D.C. , headquarters and passed out leaflets reading , “ NLRB Leadership is destroying the agency from within by refusing to spend funds to hire staff.
” They even brought Scabby the Rat to stand guard.35 As Trump ’ s board whittles away labor rights , unions and workers increasingly see the legal bureaucracy of the NLRB as irrelevant or even antithetical to @ @ @ @ @ @ @ layman , the regular worker [ or ] union worker…they think that the board is there to protect them , ” said Rob Atkinson , a former UPS driver .
But under the current administration , “ it ’ s obvious with their decisions that they ’ re no longer a friend of the working man and woman .
They ’ re now a watchdog for the national Chamber of Commerce and Trump ’ s buddies.
” 37 UPS fired Atkinson , a longtime Teamsters shop steward in western Pennsylvania , in 2014 @ @ @ @ @ @ @ He filed two grievances , saying he was fired for his activism in a rank-and-file Teamsters movement , but he got no relief from what he said was a biased internal grievance panel.38 Atkinson sought justice with the NLRB , and shortly before Trump took office , a lower-level judge found that his dismissal had been retaliatory , invoking an Obama-era ruling that said the board can override a grievance panel when considering certain violations of the National Labor Relations Act .
But last December , the Trump-appointed majority on the board reversed @ @ @ @ @ @ @ panel should have had the last word.39 “ My panel was made up of political enemies and people who wanted me gone , ” Atkinson said .
But his struggle with his former employer “ really opened my eyes and showed me how cold and callous big businesses are and how we really need huge , strong unions and a strong National Labor Relations Board…to hold these companies accountable.
” 40 In a statement , UPS said the board “ recognized that an internal dispute resolution process can be relied upon to make @ @ @ @ @ @ @ might take years to resolve in other forums.
” 41 Atkinson is appealing his case in federal court .
His experience turned him into something of an NLRB watchdog ; he now runs a Facebook group that tracks cases and educates other workers about what Trump is doing to labor law .
“ Look what the NLRB is doing to our rights and how they ’ ve turned into an antagonistic organization to the average working man or woman instead of an organization that ’ s there to uphold us , ” he @ @ @ @ @ @ @ Jobs on Labor Day .
And Every Day .
There Is Power Even Without a Union The Covid-19 pandemic has led to fresh labor clashes : Meatpacking workers have walked off the job , nurses have protested nationwide demanding more protective gear , and Whole Foods workers have filed suit after being disciplined and fired for wearing Black Lives Matter masks and apparel .
Yet the NLRB continues to make it harder for workers to organize.43 In July the NLRB Union and other labor groups denounced the board ’ s safety guidelines for @ @ @ @ @ @ @ advocated a move to online or mail-in voting instead .
At the same time , the NLRB ’ s advice division , which provides legal guidance to regional offices , has issued memorandums that seem to give employers the green light to act unilaterally in response to the pandemic .
One advisory suggests that an employer can refuse to bargain with a union over requests for pandemic-related “ paid sick leave and hazard pay.
” The NLRB also indicated that a person can be fired after speaking out against a company ’ s @ @ @ @ @ @ @ director of Harvard Law School ’ s Labor and Worklife Program and an NLRB member under Obama , said that during the pandemic , it was “ incumbent on worker protection agencies like the [ NLRB ] …to be exceptionally vigilant on behalf of workers and attuned to violations of their rights , because it is so hard to feel secure enough to speak out .
[ But ] this is a board that we watched operate for three years in a way that would not give that kind of security to workers.
@ @ @ @ @ @ @ the systemic problems with enforcing the National Labor Relations Act go beyond the Trump administration .
“ Even with board members…and a general counsel with the best of intentions who really believe in the spirit and the purpose of the act , it ’ s just a tool that doesn ’ t work anymore.
” 46 The Labor and Worklife Program wants to overhaul labor law and extend protections to domestic and undocumented workers .
It also advocates for sectoral bargaining , which would enable workers in an industry to negotiate en masse.47 @ @ @ @ @ @ @ lawmakers are pushing the Protecting the Right to Organize Act , which would expand the rights of workers to strike and organize at work , institute meaningful penalties for bosses who violate labor law , and allow workers to sue employers in civil courts rather than be forced to rely solely on lengthy litigation at the NLRB.48 Despite its limitations , workers continue to use Section 7 of the National Labor Relations Act , often to ward off campaigns to suppress organizing .
Since April , Amazon workers belonging to the grassroots group @ @ @ @ @ @ @ charges with the NLRB , alleging that they were unfairly disciplined by the company after staging walkouts and slowdowns to demand better health protections .
Amazonians United member Ted Miin said he and his coworkers were reprimanded for allegedly violating social distancing guidelines at work , which he sees as retaliatory selective enforcement .
( Amazon did not return a request for comment . )
49 Concerned that it might not be worth the effort , Miin was wary of filing a charge .
But when the official probe began , the atmosphere @ @ @ @ @ @ @ basically loosened up on us a lot at our warehouse since we ’ ve had active NLRB cases open , ” he said.50 Miin knows his charges may lead to nothing .
He acknowledged that “ the Trump administration has been rewriting the NLRB rules to favor bosses over workers.
” But whatever form their resistance takes , he added , “ as workers , we have to protect ourselves .
No one ’ s coming to save us…not the NLRB , not politicians , not reporters .
As workers , we have @ @ @ @ @ @

This article appears in the September 21/28, 2020 issue.
On a June afternoon in 2019, in front of a statue of George Washington at Federal Hall in New York City’s financial district, more than 100 construction workers and activists gathered for a First Amendment rally. Amid chants of “Free speech, free speech!” an approximately 15-foot-tall gray inflatable rat with glaring red eyes bobbed in the sun. The workers, mostly members of Laborers Local 79, weren’t defending speech, exactly. Rather, they were demanding their right to display Scabby the Rat, the mascot deployed at job sites to shame anti-union bosses.1 This article was reported in partnership with Type Investigations, with support from the Puffin Foundation.
The challenge to these workers came from a seemingly unlikely quarter: the National Labor Relations Board, a federal agency responsible for interpreting and enforcing labor law. The NLRB’s general counsel, Peter Robb, had launched a legal assault to ban Scabby from a nonunion construction site at a Staten Island supermarket. Arguing that its menacing presence amounted to illegal protest activity against a “neutral” business under the National Labor Relations Act, Robb, who was appointed by President Donald Trump in 2017, sought a federal court injunction that could effectively outlaw Scabby across the country.2
On the steps outside the hall where the Bill of Rights was ratified, Chaz Rynkiewicz, Local 79’s director of organizing, took the microphone and denounced Robb as “an anti-union lawyer that, before he was head of the NLRB, worked for corporations to break unions…. If you know any Trumpsters out there, let them know, educate them. They need to know that they can’t love [their] union and love Trump.”3
So far, Scabby has survived the legal attacks. In July 2019, a federal district court judge denied Robb’s request for a preliminary injunction in the Staten Island case. But the giant rat remains under threat: An earlier case against Scabby in Philadelphia is still pending before the NLRB.4
The zeal with which Robb has pursued the cherished totem of union solidarity reflects how far the NLRB’s agenda has shifted under Trump. A report by The Nation and Type Investigations—based on interviews with more than 25 labor advocates, attorneys, and current and former NLRB staff members—reveals that the federal agency that’s supposed to protect union rights is instead championing the interests of management.5
The NLRB is tasked with administering union elections and processing unfair-labor-practice cases under Section 7 of the National Labor Relations Act, which protects “concerted activity,” the collective action that workers take to try to improve conditions on the job. Over the years, the NLRB’s rulings have tended to oscillate between pro-worker and pro-management decisions, depending on which party holds the White House.6 Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin How the “Brooks Brothers Riot” Set the Stage for Insurrection How the “Brooks Brothers Riot” Set the Stage for Insurrection Chris Lehmann
But with management-side lawyers dominating the agency, which is run by a five-seat board and a general counsel, labor advocates say the NLRB is more stridently anti-labor than ever before and is sabotaging its own mission. Not only has Trump’s board consistently sided with bosses, but career civil servants at the NLRB’s regional branches say they are being deprived of funding and staff.7 Current Issue View our current issue
Even before Trump’s appointees began to undermine the agency, labor organizers were frustrated with the NLRB. Cases often require years of litigation, and remedies typically entail only back pay or reinstatement after a worker is unlawfully fired—not penalties stiff enough to deter employers from abuse.8
After the rally in New York, Rynkiewicz told me, “As an organizer for 20-plus years, I’ve never viewed the NLRB as an ally of labor. It’s a shame to say.”9
Just before Scabby was deflated, Rynkiewicz added, “The right-wing anti-union people want to portray the NLRB as a friend of labor. It’s not—even on a good day…. When you have the board’s majority put in place by the Democrats, you get nothing. When you have the board’s majority put in by the Republicans, you get an attack.”10
Radical Rollbacks
The shortcomings of the NLRB are to some degree baked into its structure. During the labor uprisings of the 1930s, police and the National Guard members frequently killed striking workers. Established by the National Labor Relations Act in 1935, the NLRB was designed to maintain labor peace by absorbing the often violent conflicts into the legal arena. The act, a compromise between labor and management, forced companies to bargain with unions, but it also excluded whole categories of workers, such as farm laborers, and effectively limited collective bargaining to individual companies, not whole industries or sectors.11
After World War II, conservative majorities in Congress gutted the National Labor Relations Act with the Taft-Hartley Act of 1947, which expanded employers’ power to suppress workplace organizing, allowed the government to break up strikes deemed “national health or safety” threats, and required anti–Communist Party pledges from union officers, which led organized labor to purge many of its most militant union members.12
Over the next several decades, organized labor withered in numbers and political clout. With private sector union membership now down to about 6 percent, workers and unions are often left seeking justice through this byzantine, Depression-era judicial apparatus.13
The NLRB’s board is currently dominated by three conservative Trump appointees, two with ties to law firms that have represented some of the country’s largest employers. Board chairman John Ring and board member William Emanuel are lawyers who defended companies such as Marriott International and Uber, respectively. A third member, Marvin Kaplan, previously worked on labor policy as a counsel for House Republicans. The board’s lone Democrat, Lauren McFerran, left when her term expired in late 2019 but was reappointed in August. Neither the Trump administration nor the Senate has moved to fill the board’s fifth seat, which has been vacant since August 2018.14
Robb, the NLRB’s general counsel, operates independently of the board and is a veteran management-side lawyer who worked with the Reagan administration to bust the air traffic controllers’ union. While the NLRB’s regional branches process most of the unfair-labor-practice charges—handling investigations, adjudications, and settlements—Robb shapes the agenda for the board, which rules on complaints appealed from the regional level, setting precedents for how the National Labor Relations Act is applied and enforced.15
Shortly after being sworn into office in November 2017, Robb set about reversing the legacy of the previous board, which had incrementally expanded workers’ rights. In a series of sweeping decisions, the board scrapped rules instituted under Barack Obama barring workplace policies that impinge on the right to organize, axed a prohibition against employers making unilateral changes to collective bargaining agreements, and overturned a ruling allowing workers to form smaller bargaining units within a larger workforce.16
One of the board’s most influential decisions dealt a severe blow to efforts to extend collective bargaining rights for contracted workers. Under Obama, the NLRB loosened the joint employer standard, which determines whether a company can be considered an additional employer of workers hired through a contractor, such as a franchise operator or subcontracted cleaning agency. In 2015, the board ruled that a company could be considered a joint employer if it exercised “indirect control” over workers or had the ability to exercise control.17
The Trump board restored a more restrictive joint employer standard—first through a 2017 decision, which the board vacated because of a conflict-of-interest issue, then in 2020 through the administrative rulemaking process. The move upended a multiyear legal challenge brought by McDonald’s workers, who claimed that the company had enough influence over its franchisees to be considered a joint employer and was therefore liable for retaliation against workers involved with the Fight for $15, the campaign for a $15 hourly minimum wage and a union.18
The board’s initial moves to nullify Obama-era provisions have been followed by rulings that limit workers’ rights far beyond those under previous Republican administrations. In August 2019 it reduced workers’ rights to protest on private property, determining that management could block musicians with the San Antonio Symphony from leafleting at a performance venue because it was not owned by their employer. It also excluded faculty at religious colleges and universities from its jurisdiction and allowed bosses to bar workers from organizing on company technology and equipment, including the use of e-mail.19
In recent months, the board has also used its rulemaking process to roll back pro-worker regulations, especially in regard to union elections; make it easier for employers to interfere with voting; weaken rules that protect unionizing construction workers; and shorten the time that employers must wait before petitioning to oust a union.20
“It’s breathtaking how many areas of the law, how many precedents they’ve managed to overturn,” said Wilma Liebman, a chair of the NLRB under Obama. “And they just kind of snap their fingers and do it, in my view, with little regard for the quality of the legal thinking or reasoning, reaching out to decide issues that aren’t before it.”21
Some NLRB staffers fear that Robb is making it more difficult for them to scrutinize employers. In June he directed staffers to dramatically alter their investigative procedures. In some cases, bosses can now preview recordings that could be used as evidence and be present when former supervisors testify against them. NLRB spokesperson Edwin Egee told The Nation and Type Investigations that the “dissemination of information during the investigation” enables the agency to “more fairly enforce the [National Labor Relations Act]” and “aid settlement efforts.” But labor advocates say the measures discourage whistleblowers and compromise the integrity of cases.22
The NLRB’s rightward shift under Trump has deterred some unions from taking cases to the agency. A current NLRB staff member, who requested anonymity to avoid retaliation, said she has observed unions opting to settle to avoid triggering an unfavorable ruling. Unions, she said, “are just less likely to turn to us because they…don’t want to create bad law.”23
Several graduate student employee unions, including at Boston College, withdrew their cases in 2018 to prevent the board from overturning the Obama-era precedent that supported the collective bargaining rights of graduate workers at private institutions. “We pulled our petition to protect the rights of graduate student workers at private universities nationwide,” said Sam Levinson, a Boston College graduate student worker, in an e-mail. “The current NLRB has consistently chipped away at the collective bargaining rights for which the labor movement has fought for decades. We decided to organize and build power, instead of allowing Boston College to put the fate of our rights into the hands of Trump and his appointees.”24
Even though the petition was dropped, the board initiated a rulemaking process last September to strip collective bargaining rights from graduate student employees—another attempt to change policy through an administrative rule change rather than case law.25
Inner Turmoil
For career staffers who joined the NLRB to help enforce the rights of workers, the Trump board has been demoralizing. “There’s a host of decisions that have come out that are destructive of workers’ rights, and it’s an extremely sad time to be at this agency and work here,” said a second NLRB staff member, who also requested anonymity. “The only hope is that [the administration] will turn before too much damage is done.”26
In early 2018, according to Bloomberg Law, Robb floated a proposal to centralize case-handling authority under officials who report directly to him. The NLRB’s 26 regional directors protested, calling the move a unilateral concentration of authority by a Trump appointee. And Senator Patty Murray (D-Wa.) and Representative Rosa DeLauro (D-Conn.) sent a letter expressing concern. At the time, an NLRB spokesperson told Bloomberg Law that “no plan involving the restructuring of our Regional Offices system has been developed.” Facing congressional scrutiny and a backlash from staff, Robb seemingly shelved the idea.27
But in August he appeared to have revived his consolidation efforts with a plan to combine case handling across several branches in Los Angeles, Seattle, San Francisco, Oakland, Denver, and Phoenix. Democrats in Congress criticized the proposal as a backdoor attempt to undercut the regional directors. Egee said the plan did not constitute a reorganization of the local offices and was merely a “resource sharing” initiative intended to “address chronic workload imbalances” between regions.28
In 2018, Robb antagonized staffers with a memo recommending dozens of ways to speed up investigations. Although Egee said the guidance was drawn “directly from NLRB employees,” the NLRB Union, which represents workers in the regional offices, responded by arguing that it will “result in a reduction in quality, not an improvement.”29
Staffers say they are under pressure to process cases quickly, prioritizing efficiency above all else. Meanwhile, the workforce has shrunk. While the number of field staffers has been decreasing since 2011, Robb exacerbated that trend by offering buyouts and early retirement incentives to eligible employees, according to the NLRB Union. The result, it said, has been a more than 20 percent reduction in staffing since fiscal year 2017—from more than 900 to about 717 full-time equivalents as of June 30. (Egee cited different statistics, stating that the total number of employees has declined less than 4 percent since fiscal year 2018.)30
During fiscal year 2019, according to the NLRB’s annual performance report, the processing time from initial filing to judgment for unfair-labor-practice cases fell from 90 to 74 days. Yet the agency’s funding has shrunk by an inflation-adjusted 15 percent since fiscal year 2011, according to the NLRB Union.31
A third NLRB field staffer said being asked to work faster with fewer resources feels like an attack on the agency. “If you are trying to [end] the administrative state and you want to get rid of the agencies you like the least—ours is probably one of them—then this is what you do. You really starve the staff, and you decrease morale.”32
Some NLRB employees have left the agency on principle, according to another current staff member. “It is really tough when you believe in Section 7 rights and you have to write [a legal rationale] that you believe is eroding them,” the person said, noting that the NLRB was losing both experienced senior staffers and talented younger lawyers. “We’ve had some incredibly bright attorneys hired in the last five or so years who are jumping ship…. They’re still in labor law. They’re still in the fight. But they’re not going to fight from within the board.”33
The agency’s two staff unions—the NLRB Union and the NLRB Professional Association, which represents employees at the headquarters—have been waging a modest resistance. They have accused the board of understaffing the agency, refusing to bargain in good faith over the Professional Association’s contract, and letting millions of dollars in the agency’s budget go unspent. (The board has disputed the allegations and attributed the underspending to contracts that were not completed or came in under budget.)34
Last November, the unions held a rally at the NLRB’s Washington, D.C., headquarters and passed out leaflets reading, “NLRB Leadership is destroying the agency from within by refusing to spend funds to hire staff.” They even brought Scabby the Rat to stand guard.35
A Rank-and-File Struggle
As Trump’s board whittles away labor rights, unions and workers increasingly see the legal bureaucracy of the NLRB as irrelevant or even antithetical to their efforts.36
“A lot of people—the layman, the regular worker [or] union worker…they think that the board is there to protect them,” said Rob Atkinson, a former UPS driver. But under the current administration, “it’s obvious with their decisions that they’re no longer a friend of the working man and woman. They’re now a watchdog for the national Chamber of Commerce and Trump’s buddies.”37
UPS fired Atkinson, a longtime Teamsters shop steward in western Pennsylvania, in 2014 for allegedly violating package delivery procedures. He filed two grievances, saying he was fired for his activism in a rank-and-file Teamsters movement, but he got no relief from what he said was a biased internal grievance panel.38
Atkinson sought justice with the NLRB, and shortly before Trump took office, a lower-level judge found that his dismissal had been retaliatory, invoking an Obama-era ruling that said the board can override a grievance panel when considering certain violations of the National Labor Relations Act. But last December, the Trump-appointed majority on the board reversed that precedent, deciding that the grievance panel should have had the last word.39
“My panel was made up of political enemies and people who wanted me gone,” Atkinson said. But his struggle with his former employer “really opened my eyes and showed me how cold and callous big businesses are and how we really need huge, strong unions and a strong National Labor Relations Board…to hold these companies accountable.”40
In a statement, UPS said the board “recognized that an internal dispute resolution process can be relied upon to make fair and regular decisions on claims that might take years to resolve in other forums.”41
Atkinson is appealing his case in federal court. His experience turned him into something of an NLRB watchdog; he now runs a Facebook group that tracks cases and educates other workers about what Trump is doing to labor law. “Look what the NLRB is doing to our rights and how they’ve turned into an antagonistic organization to the average working man or woman instead of an organization that’s there to uphold us,” he told me.42 Labor Biden Needs to Talk About Jobs on Labor Day. And Every Day. Jane McAlevey There Is Power Even Without a Union P.E. Moskowitz McDonald’s Has a Real Sexual Harassment Problem Bryce Covert
The Covid-19 pandemic has led to fresh labor clashes: Meatpacking workers have walked off the job, nurses have protested nationwide demanding more protective gear, and Whole Foods workers have filed suit after being disciplined and fired for wearing Black Lives Matter masks and apparel. Yet the NLRB continues to make it harder for workers to organize.43
In July, the NLRB Union and other labor groups denounced the board’s safety guidelines for resuming in-person union elections as inadequate and advocated a move to online or mail-in voting instead. At the same time, the NLRB’s advice division, which provides legal guidance to regional offices, has issued memorandums that seem to give employers the green light to act unilaterally in response to the pandemic. One advisory suggests that an employer can refuse to bargain with a union over requests for pandemic-related “paid sick leave and hazard pay.” The NLRB also indicated that a person can be fired after speaking out against a company’s Covid-19 safety protocols.44
Sharon Block, the director of Harvard Law School’s Labor and Worklife Program and an NLRB member under Obama, said that during the pandemic, it was “incumbent on worker protection agencies like the [NLRB]…to be exceptionally vigilant on behalf of workers and attuned to violations of their rights, because it is so hard to feel secure enough to speak out. [But] this is a board that we watched operate for three years in a way that would not give that kind of security to workers.”45
Nonetheless, she added, the systemic problems with enforcing the National Labor Relations Act go beyond the Trump administration. “Even with board members…and a general counsel with the best of intentions who really believe in the spirit and the purpose of the act, it’s just a tool that doesn’t work anymore.”46
The Labor and Worklife Program wants to overhaul labor law and extend protections to domestic and undocumented workers. It also advocates for sectoral bargaining, which would enable workers in an industry to negotiate en masse.47
In the more immediate term, Democratic lawmakers are pushing the Protecting the Right to Organize Act, which would expand the rights of workers to strike and organize at work, institute meaningful penalties for bosses who violate labor law, and allow workers to sue employers in civil courts rather than be forced to rely solely on lengthy litigation at the NLRB.48
Despite its limitations, workers continue to use Section 7 of the National Labor Relations Act, often to ward off campaigns to suppress organizing. Since April, Amazon workers belonging to the grassroots group Amazonians United in Chicago filed several unfair-labor-practice charges with the NLRB, alleging that they were unfairly disciplined by the company after staging walkouts and slowdowns to demand better health protections. Amazonians United member Ted Miin said he and his coworkers were reprimanded for allegedly violating social distancing guidelines at work, which he sees as retaliatory selective enforcement. (Amazon did not return a request for comment.)49
Concerned that it might not be worth the effort, Miin was wary of filing a charge. But when the official probe began, the atmosphere at work changed. “Management has basically loosened up on us a lot at our warehouse since we’ve had active NLRB cases open,” he said.50
Miin knows his charges may lead to nothing. He acknowledged that “the Trump administration has been rewriting the NLRB rules to favor bosses over workers.” But whatever form their resistance takes, he added, “as workers, we have to protect ourselves. No one’s coming to save us…not the NLRB, not politicians, not reporters. As workers, we have to get organized ourselves.”51