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Trump’s NLRB: Assault on Labor in the Pandemic Era

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While working-class families across the country are reeling from the effects of the coronavirus pandemic, the ruling class is making serious grabs not just for massive cash bailouts, but also attacking our rights in the workplace through the National Labor Relations Board (NLRB).

The right wing appointments to the NLRB by the Trump administration have kept themselves busy over the past period chipping away at legal protections for workers and their unions. The five-member board is now majority appointed by Trump, coming from backgrounds as management lawyers and staff for the Republican Party. However, these actions come against a backdrop of the NLRB repeatedly being on the side of the bosses during Democratic Party administrations.

Over the past four decades of vicious attacks on the working class, we’ve seen administrations and majorities of both parties elected and appointed from House to Senate to agencies like the NLRB. It’s been a decline in wages, conditions, and union membership regardless. What’s been missing in these four decades is militant leadership of working class organizations and these organizations taking an approach of class struggle instead of the race to the bottom of class collaboration.

While, having stronger protections through more friendly labor laws and agencies like the NLRB can help keep the law off our backs, none of these can substitute where our ability to protect and advance our interests as workers actually lies, through our collective organization into fighting unions.

Hardline Anti-Union Appointees to the NLRB

In August of 2017, Trump appointed Marvin Kaplan, who’s only labor experience was drafting legislation to undermine worker’s rights and holding hearings to criticize the NLRB. One month later, William Emanuel was appointed – a shareholder with the multinational corporate law firm Littler Mendelson, which “provides legal strategies and solutions for employers of all sizes, everywhere,” including notorious union busters Uber and Boeing. Within six months, Emanuel was under investigation for having a conflict of interest in a case the NLRB was reviewing, nullifying the ruling that had unsurprisingly gone in favor of the employers.

By the end of the year, another anti-union appointee had been added, Peter B. Robb, who also had a background of representing management in legal cases for Downs Rachlin Martin. This firm prides itself on services offered, of “securing injunctions against strikes” and “advising employers confronted with union organizing drives.” And they get results: in a Roman triumph titled “recent accomplishments” this firm crows over conquering union ironworkers, millwrights, healthcare workers, and busting a union drive at a national employer.

Peter B. Robb has a rap sheet of crimes against workers. During a previous stint on the NLRB in 1981 he played a key role in backing up Reagan while the president fired over 11,000 air traffic controllers and obliterated their union. Members of the Professional Air Traffic Controllers Organization (PATCO) were banned from working in the industry, and this event stands out in the memory of many union members as the beginning of decades of retreat and defensive battles.

Shortly after, the Trump administration appointed NLRB chairman John F. Ring, a former co-chair of global labor and employment law firm Morgan, Lewis and Bockius. This firm, along with other law offices representing management in labor disputes, are the heavy hitters called in by employers when seeking to disrupt union drives, grievance procedures, and collective bargaining. Their website links to a shameful article that provides advice to employers on how employers can “immunise” their businesses from union organizing.

NLRB chairman John F. Ring went on to eliminate the ethical provisions around conflict of interest that were inconveniencing these well connected management lawyers now on the Labor Board. Board members could now “insist on participating” in an active case regardless of the labor agency ethics department calling out conflicts of interest. This was important, shown in the example of the Fight for $15, where law firms that two NLRB board members had worked for were representing McDonald’s against workers fighting for $15 and a union.

Attacks on Labor in the Pandemic Era

Meatpacking plants have been a bubbling vector of disease, with over 6,500 positive cases, while companies fail to provide adequate protective equipment or safety measures, some not even shutting down for full cleanings. Workers and their families have taken to caravan protests outside the plants and workers have been walking out by the dozens. Despite worker deaths on the rise, Trump passed an executive order requiring closed plants to resume production and ordering workers back to their unsafe jobs.

Gig workers like rideshare app drivers and delivery service workers are being denied protections under existing labor laws, the NLRB having decided that because they’re independent contractors means their legal workplace protections are practically nonexistent because they’re not directly employed by the companies that profit off of them.

This current body has overturned NLRB precedent in over a dozen cases, consistently in favor of the employer. From suspending union elections to running union decertifications that only require a third of members to vote in favor of removing their representation, the current NLRB is fully using the background of the pandemic as cover to land punches on organized labor.

On March 19, the NLRB halted all union elections and unfair labor practice hearings. The agency also shuttered five regional offices east of the Rockies. As the AFL-CIO noted in their demand to reverse this decision, workers need protections now more than ever.

HCA, the largest hospital corporation in America, is using the disorder of the pandemic and the right-wing NLRB to stall a union drive of 1,600 nurses in North Carolina. 850 steelworkers at an Arcelormittal plant in Alabama had their union election postponed, despite outstanding concerns regarding health, safety, and job losses.

Labor unions and worker’s advocacy groups pushed back publicly on the ban on union elections and were able to pressure the Board to backtrack, but decisions made leading up to this point have undermined labor rights in industries where workers were already vulnerable. The pandemic is only exacerbating these conditions.

Implemented by the NLRB on April 1, another attack on our unions is the dishonestly named “Protect Employee Free Choice” rules, requiring employers post notice that workers can have decertification votes to eliminate their representation after only 45 days following a successful union election, and requiring unions to count ballots even when the employer has charges of unfair labor practices that have interfered with the election. Only 30% of the workers need to support decertification to remove the union as representative of the workers.

This collusion between employers and the state isn’t limited to the Republican Party, although they are generally more aggressive in pursuing an anti-labor agenda. Barack Obama made a whole host of progressive promises on the campaign trail that his administration never delivered on, the Employee Free Choice Act (EFCA) among them.

This legislation was a top priority for labor unions, but despite having a filibuster proof majority, Obama and the Democrats failed to deliver. Obama went on to appoint Republican Terence Flynn to the NLRB, despite his role in helping companies “develop union avoidance strategies.” Within months, Flynn was also at the center of ethics violations and resigned.

“Disaster Capitalism” – A Well Worn Path

This approach of the ruling class, of using a crisis as cover to enrich themselves and attack workers’ rights, is not unique to this pandemic. Hurricane Katrina was exploited to fire 7,500 public school teachers in a union busting push for publicly-funded, private charter schools. Public housing, some not even damaged by the storm, was demolished to make way for “market-oriented” developments.

Similar maneuvers were seen after 9/11, with the implementation of the infamous “Patriot Act,” which massively expanded and set precedent for the surveillance apparatus of the state to spy on regular people. Additionally, airlines got over $70 billion in bailouts over the next period, half of the total value of the industry.

Workers Fight Back

The refusal of the government to prioritize workers’ needs while our employers place profits over public health, has pushed workers in a number of industries to organize and fight. In many cases it has been non union workers in grocery and logistics leading the way, along with rank and file union members “wildcatting” in unsanctioned strikes.

Union members in sanitation and public transportation struck over workplace grievances of a lack of protective equipment and safety measures. Workers at Instacart went on strike across the country, demanding hazard pay and increased sick leave coverage. Amazon workers had similar actions, with organizers facing increasing retaliation from the company.

This organizing in retail and logistics has continued, taking an important step forward with coordination across companies. Organizers at Amazon, Whole Foods, Target, Shipt, and Instacart worked together in calling for strikes on May Day. This understanding that poor working conditions span the industry, and that workers need to organize on an industrial basis to improve these conditions is an important development.

It was workers drawing this conclusion and organizing beyond individual employers or job descriptions that helped create the dynamic of a powerful labor surge in the 1930s, forcing concessions from the bosses on workplace rights, pay, and conditions. An indispensable contributor also was militant union leaders who clearly understood where power to effect change exists in society – in the hands of working people who create the wealth of the world.

Of critical importance was that as socialists, these union leaders did not accept the limitations of capitalism, instead basing what was possible on the power of the workers active in the labor movement. If you accept the bosses’ right to private profit and property, what’s written in laws designed to hamstring collective action, you have to take the dictates of the system at face value.

When the employer says, “That’s all you get. Last best and final offer.” Leadership is confronted with a choice. Either take what’s on offer and press it upon the workers, or base yourself on the workers’ ability and willingness to fight and press their demands on the bosses. Business unionism seeks to partner with the employers, class struggle unionism understands that the relationship between labor and capital is at its root antagonistic and consciously sides with the workers.

What is the NLRB?

The NLRB is an agency often referred to and talked about in organized labor, but what’s often not understood is its role in workers’ struggle. Created in 1935 with the passage of the National Labor Relations Act, or Wagner Act, this measure was passed on the heels of a turning point for the labor movement where the socialist-led “big three” strikes of longshoremen, teamsters, and auto workers succeeded in showing a way forward during the Great Depression for workers beset by unemployment, plummeting union membership, homelessness, and poverty.

Despite the introduction of arbitration procedures and the “right to organize” provided by the Wagner Act, many of the strikes in the period following were just for union recognition by the company. When unions had the upper hand through militancy and organization, arbitration would be pressed upon them to divert this energy out of the workplace and into a courthouse.

The stated role of the NLRB is to provide workers with a protected legal process to collectively organize and negotiate with their employers. For the employers, they want an authoritative body that can help them end strikes and set up union election rules that favor employers and prevent wildcat strikes that disrupt production as a way of recognizing unions. 

What defines the working class is its relationship to production, that by our labor is created the immense profits of the capitalist class. Withholding this labor collectively is the most powerful weapon available to us. Having an agency whose primary purpose is to take our movements out of our workplaces where we have real power, shackling it administratively to expensive law firms instead, is not to our favor.

Unfortunately most union leaders today don’t understand where the power of their union actually is, and fall for the clever gimmicks of NLRB arbitration and procedure. Unions are not lobbying or constituency groups, they are mass organizations of workers and their power comes from the union members at the point of production, their workplaces.

In a world divided into those with billions at their fingertips while the rest of us work our fingers to the bone, there is no neutrality. Maintaining peace between these opposing class interests will come at the expense of one, and the bosses control both political parties and write the laws. The role of government, and the NLRB with it, is to reinforce the interests of the owning class at the expense of the working class.This is true whether a Republican or Democratic government is in power.

Class Struggle and the Law

The legal limitations imposed on labor are obstacles in organizing, but cannot compare to the raw power that is in the hands of the working class as a whole. A recent inspiring example is the Red for Ed strikes in 2018, where Right to Work states saw a surge of teachers organizing and fighting for better schools for our children.

West Virginia teachers didn’t even have the legal right to collectively bargain, let alone withhold their labor, but they understood how if they united across all of public education, the state couldn’t replace every public school worker. Teacher and strike leader Nicole McCormick said, “There’s no such thing as an illegal strike, only an unsuccessful one.”

While workers should recognize their best weapon is collective organization, having laws friendly to labor helps to keep legal red tape from tripping up organizing drives and demoralizing workers with threats of court injunctions.

This predation of the employers and their political establishment – taking advantage of crises that devastate working families – illuminates the need for workers to collectively organize on a permanent basis, into labor unions. It’s also critical for all of organized labor to engage with and support these developing struggles in “essential industries.” These workers in logistics, warehouses, health care, and grocery are providing an overdue lead in this important moment of deadly working conditions and looming recession.

The message from the 1930s labor union newspaper The Northwest Organizer, is every bit a relevant call to arms today as it was in the Depression era: All workers into the unions – All unions into the struggle!

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