Brothers and Sisters,
As with all Unions, we are deeply impacted and affected by the National Labor Relations Board. It is the tool with which we organize and the arbiter between Unions, Corporations and Contractors. Us and Them. That being said, President Trump, who came into office courting labor support and promising to fight for American workers, broke that promise, appointing traditional management lawyers to the National Labor Relations Board. In December, these new appointees teamed with the third Republican, whose term was about to expire, to reverse key pro-worker precedents.
The Trump Board was so eager to issue these decisions that it ignored long-standing NLRB practice and reversed precedent without any public notice and without providing interested parties an opportunity to file briefs defending established law. Instead, they issued these decisions without any public fanfare – a raid on worker rights in the dead of night. In short, the Trump Board appears no different from the Bush Board, more committed to protecting profit than workers.
The “Joint Employer” Ruling
In a monumental ruling particularly relevant to our industry, the NLRB rewrote the test for determining whether multiple businesses are joint employers (Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156). The case involved two separate construction companies both owned by a father and his three sons. Both companies illegally fired workers who participated in a lawful strike. The judge who originally heard the case found each was liable for violations of the other because the companies were “joint employers.”
The Trump Board affirmed that finding. But it first announced that the old standard made it too easy to find two companies to be joint employers because it only required a showing that one company had the contractual right to control the employment decisions of the other. Instead, it found that control must be exercised directly and immediately.” This ruling will be of particular benefit to shady contractors who use temporary agencies to supply construction workers. In those cases, the fact that the real employer – the construction company making the profit on the job – limits the amount it will pay the employment agency to $25 an hour does not it make a joint employer because it does not “directly” set the workers’ wages. If it sounds like nonsense, it is.
The “Micro Union” Ruling
PCC Structurals, Inc., 365 NLRB No. 160, overruled prior law that permitted unions to organize small units of employees as long as they shared common work interests. That rule gave unions more leeway to organize those groups who needed representation and made it more difficult for employers to stack the election with management friendly workers. Under the new rule, the Board will make a “vigorous assessment” of an employer claim that other employees should be allowed to vote along with those who wish to organize. This ruling will allow employers to drag out the process and stack the vote, thus making it more difficult for workers to organize.
“No Duty to Bargain” over “Changes Consistent with Past Practices”
This decision (Raytheon Network Centric Systems, 365 NLRB No. 161) overruled a 2016 decision that limited the changes an employer can unilaterally make without bargaining. The NLRB decided that employers “do not need to bargain when they take action that are not materially different from what they have done in the past.” The NLRB returned to a nonsensical “dynamic status quo” doctrine. For those not familiar with legalese, that is just a fancy term that means a changing status quo. Of course, “change” is the polar opposite of keeping the status quo.
The bottom line is that even unionized companies can change important benefits without bargaining. For example, in this case, Raytheon modified its healthcare plan to increase the employees’ premiums and reduce their benefits. This will allow employers to skirt around collective bargaining agreements and will ultimately weaken all of our contracts.
The “Fast Track Election” Ruling
On December 14, 2017, the new Trump NLRB requested information from the Federal Register about its current representation and election procedures. This indicates that a possible reform or reversal from the “Fast Track” rule that went into effect in April 2015.
The NLRB asked three questions:
- Should the 2014 Election Rule be retained without change?
- Should the 2014 Election rule be retained with modifications and if so, what should be modified?
- Should the 2014 Election Rule be rescinded?
- a) If so, should the Board revert to the Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Election Regulations?
- b) If the board should make changes to the prior Election Regulations, what should be changed?
The NLRB requested that this information be submitted by February 12, 2018. If the “Fast Track” ruling is overturned or heavily modified, this would once again prolong the process for Board elections, giving employers more time to wage aggressive and sustained anti-union campaigns.
With the quiet reversal of these major decisions, the Trump Board already has made a significant rollback of pro-worker and pro-labor policy. Workplace rules, joint employer relationships, the definition of what constitutes bargaining units, and acceptable practices during collective bargaining have all been shifted to an anti-union, pro-business advantage. These decisions are the direct result of President Trump’s labor policy and fly in the face of his promises during the campaign to be pro-labor and pro-worker.
It is imperative that we, as a building trade union that relies on organizing to exist, educate all members and workers in our industry and across the labor movement on these changes. Workers should not be distracted by the President’s tweets and his attempts to divide us along racial and ethnic lines. We need to focus on the Administration’s actions. Unfortunately, the actions of the Trump Board are to tilt the balance in favor of the wealthy at the expense of those of us who do the hard work that actually builds our country.
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