The National Labor Relations Board was originally
established to protect the rights of working people, but a series of recent
decisions by the board – now dominated by Donald Trump appointees – rolls back
years of employee protections, limiting the ability of workers to come together
to win better wages and benefits and restricting their freedom to speak out on
“The NLRB should be an impartial body that working people have some confidence in. They should feel like they’ll get a fair shake,” said International President Lonnie R. Stephenson. “Unfortunately, that’s just not the case right now.”
In September, the NLRB ruled that janitors in San Francisco violated the law – and were rightfully fired – when they picketed outside their employer’s office. They were pushing for better working conditions, freedom from sexual harassment and higher wages. But apparently they were doing it outside the wrong building according to the board.
The janitors were employed by subcontractor Ortiz Janitorial Services which contracted with Preferred Building Services, whose office was the site of the picket. While such contracted employment relationships are common, they are not all viewed the same way when it comes to labor rights.
At the heart of the decision is the joint employer rule. Announced during the Obama administration, the rule states that a parent company can be held accountable for the working conditions of a contractor – like a McDonald’s or franchised tree-trimming service – if that company maintains a say in such decisions. In other words, employers cannot hide behind subcontractors when it comes to labor law violations.
By determining that the companies involved were not joint employers, the NLRB was able to use what In These Times’ Moshe Marvit called “a particularly onerous provision” in federal labor law that prohibits picketing and boycotts of secondary employers.
“What is remarkable about this case is how it makes things much worse for workers by only subtly reinterpreting the law,” Marvit wrote. “Ultimately, this case shows how many basic fundamental rights associated with the First Amendment workers are prohibited from engaging in.”
Marvit noted that if anyone else had picketed there, that activity would be protected under the First Amendment.
The joint employer rule has been challenged by the business community and the NLRB is looking to rewrite it, which will almost certainly make it more management-friendly.
In another case citing the First Amendment, the NLRB’s Office of the General Counsel issued a brief in September stating that the board should reverse another Obama-era decision that allows employees to use work email for organizing activity. The brief claimed that, as a government entity, the board cannot force employers to pay for speech they might oppose, citing U.S. Supreme Court case Janus v. AFSCME, Bloomberg News reported.
The Janus case was a major blow to workers’ rights that reversed decades of court precedent by determining that public sector employees did not have to pay administrative fees to the unions that are legally bound to represent them.
Bloomberg Law also reported that in September, the NLRB ordered its field offices to pursue charges against unions for “negligent” behavior like losing an employee’s complaint or failing to return a phone call. As Bloomberg notes, such behavior was previously considered harmless and former NLRB chair William Gould referred to it as a “stretch beyond” what the Supreme Court says constitutes a breach of duty.
“Going after unions for what is essentially human error, while simultaneously making it harder for employees to exercise their right to join together in union, only serves to aid and abet big corporations and unscrupulous employers,” Stephenson said. “Working people deserve better. They deserve a voice at work and a labor board that doesn’t treat them like they’re the problem.”