The National Labor Relations Board (NLRB) was established by Congress in 1935 as an independent federal agency to protect the right of private sector employees to join together, with or without a union, to improve their wages, benefits and working conditions. The NLRB oversees hundreds of union elections and investigates thousands of unfair labor practice charges each year.
In reality, the independence of the Board depends on who is selecting the board members. With Donald Trump’s administration choosing the nominees, the NLRB looks to act as a backer for employers, rather than as the protector of private sector employees that the 1935 Act intended.
Trump has replaced Obama appointees with men from the corporate sector: Chair John F. Ring, was a partner at the law firm Morgan, Lewis, Bockius. That firm served as tax counsel to Donald Trump since 2005 and represents three-quarters of the Fortune 500 companies. William J Emanuel was a shareholder in Littler Mendelsohn, a law firm exclusively devoted to representing management in employer litigation. Maurice E. Kaplan started out with a business law firm in Missouri and later served as counsel to Republican led congressional committees and OSHA. The remaining Obama board member is Lauren McFerran, who served as counsel to a Democrat-led Congressional after working as a medium-sized DC law firm whose focus was representing labor organizations. When her term expires in December 2019 there will likely be a fourth employer-oriented appointee.
The new Trump board has quickly turned to reversing rulings that defended workers. They overturned a ruling that made it easier for a union to form a small bargaining unit deli workers at a grocery store, for example. They’re reviewing a decision that determined a company was responsible for the labor violations of its contractor or franchise operator. Another case slated to be overturned is one where the NLRB ruled that graduate assistants working at private universities are covered under the National Labor Relations Act and are allowed to form unions. A third ruling opposed by employers had deemed illegal an employer’s effort to force an employee to mandatory arbitration and forbid them to join a class action challenging violations. (This decision has already been overturned by a Supreme Court ruling that corporations can force workers to waive their right to join a class action suit.)