The nation’s top labor regulatory agency may soon be able to take up some urgent tasks now that President Trump has nominated Marvin Kaplan, with William Emanuel’s nomination expected later this week, to fill a vacant seat at the National Labor Relations Board (NLRB). This represents a huge opportunity for reform. In recent years, the NLRB has pushed out job-killing decisions and regulations favoring the interests of organized labor over individual workers. It is imperative for the Senate to confirm President Trump’s nominees so they can bring fairness and predictability to agency decisions.
Here are five pressing issues the NLRB must tackle:
- Joint-Employer Decision. This controversial ruling expanded the conditions under which one employer can be held jointly liable for another employer’s bargaining responsibilities and labor law violations. The NLRB’s 2015 decision in Browning-Ferris Industries greatly increased the liability faced by companies that contract with other employers, even if the company exerts no direct control over the work conditions of the other employer. The result likely will mean reduced opportunities for entrepreneurs and hardworking Americans. The decision has already forced franchisors to provide less assistance to small companies they contract with and could deter big companies from contracting with small businesses entirely.
- Ambush Election Rule. This regulation dramatically changed labor union election rules to limit the amount of time workers have to decide on whether or not to form or join a union. Shortening the time workers have before they vote on such an important decision deprives them of the ability to hear the pros and cons on unionization. Equally troubling, the rule threatens worker privacy. It requires employers to hand over workers’ private information—telephone numbers, email addresses, and work schedules—with no ability to opt out. Workers should be able to control with whom they share their private information.
- Micro-Unions. In the Specialty Healthcare case, the NLRB abruptly redefined what constitutes an appropriate collective bargaining unit. The decision allows unions to “gerrymander the workplace” in order to organize small groups of workers within a single workplace. This splintering of the workplace will drive up administrative costs as employers are forced to grapple with multiple unions. It would also have a downstream impact on workers, diminishing worker training opportunities and hurting workplace morale.
- Protected Concerted Activity. In several decisions the NLRB has greatly expanded the definition of protected concerted activity, a legal concept that protects workers from employer retaliation when they come together to improve workplace conditions. It is important to protect worker rights, but the NLRB has stretched the definition to absurdity. For example, in Cooper Tire & Rubber Co., the NLRB ruled that an employer unlawfully fired a union employee who screamed racist remarks at non-union workers who crossed the picket line. In essence, the NLRB has gone so far in propping up labor unions that they are prohibiting commonsense workplace policies that say employees must treat each other, customers, and supervisors with respect.
- Automatic Dues Deduction Continue after Union Contract Expires. In its decision in Lutheran Lincoln, which overturned 53 years of precedent, the NLRB ruled that employers must continue to deduct union dues from the paychecks of workers who authorized such deductions even if the collective bargaining agreement those dues supported has expired.