July 8, 2017
By Larry Cary
Many union members voted for candidate Donald Trump without realizing they were effectively voting to reverse labor laws that helped unions and protected workers.
They did not understand that the President appoints the members of the National Labor Relations Board, who determine whether the Board is pro-union or anti-union. The Obama Board issued many decisions requiring employers to respect workers’ rights, to speed up union certification elections, and increased the power of unions by, for example, requiring employers who subcontract their workforce to bargain with a union representing the subcontracted workers.
President Trump has just finished nominating three Republicans to the Board, which if confirmed by the Senate will become a majority that threatens the reforms made by the previous Board.
Only three days after taking power, Trump appointed Philip A. Miscimarra the Acting Chairman of the NLRB. Mischimarra, the lone Republican on the Board, has a long history of representing management. Before joining the Board, Miscimarra was a Senior Fellow at the University of Pennsylvania’s Wharton Business School in the Wharton Center for Human Resources and a labor and employment law partner with Morgan Lewis & Bockius LLP in Chicago. He also previously worked as a labor and employment attorney with Seyfarth Shaw LLP; Murphy Smith & Polk PC (now the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, PC); and Reed Smith Shaw & McClay (now Reed Smith LLP).
In 2013, Mischimarra became a member of the Board as part of a deal between Obama and Senate Republicans who for years had blocked his appointments. That year, in the face of intransigent Republican opposition to any of Obama’s appointments to the Board, Senate Democrats threatened to eliminate the 60-vote cloture rule aka the filibuster. Rather than see this happen, the Republicans agreed to a compromise. Obama appointed Mischimarra in return for the Senate Republicans agreeing to confirm a Democratic majority on the Board. For the first time in ten years, the Board then functioned with the full five-member complement provided for under the law.
This deal also allowed Obama to appoint a pro-union and pro-worker majority of the Board, which resulted in numerous Board decisions helping labor and workers. For example, the Obama Board changed the rules to allow for speedier union elections. Under the old rules, employers were unfairly able to significantly delay an election so they could aggressively campaign among the workers to vote against the union. This majority also imposed on employers an obligation to bargain with a union when the union won an election among its subcontracted workers. These gains are now at risk of being revoked by a new Trump Board.
Not content to leave him as an Acting Chairman, in April Trump nominated Mischimarra to a permanent five-year-term as the Chairman of the Board. This nomination raises a significant legal issue. Earlier this year the Supreme Court ruled that under the Federal Vacancies Reform Act of 1998 (FVRA), it was against the law for the Board’s Acting General Counsel to serve once nominated by the President to the permanent position. Either the Senate will quickly confirm Mischimarra to his permanent appointment, or Congress will have to amend FVRA to enable him to function as the Acting Chairman pending confirmation. Should action on his nomination drag on any litigant could overturn an NLRB decision where Mischimarra was the deciding vote.
Trump has followed his appointment of Mischimarra with additional nominations of Republicans. He recently nominated William J. Emanuel and Marvin Kaplan. Emmanuel is a shareholder at the nationwide management-side law firm of Littler Mendelson PC. Because the firmis a corporation, instead of being called a partner he is called a shareholder. According to his firm’s website, Emmanuel has extensive experience representing employers in traditional labor relations, including collective bargaining negotiations; administration of collective bargaining agreements; labor arbitration; union election campaigns; strikes, picket lines, and boycotts; corporate campaigns by labor unions; and labor injunctions.
Emmanuel is reportedly a member of the right-wing and deeply anti-union Federalist Society, whose website lists him as an “expert” because he has “spoken or otherwise participated in Federalist Society events, publications, or multimedia presentations.” Funded by the notoriously anti-union Koch brothers, the Federalist Society is a group of ultraconservative and libertarian judges, law professors, attorneys and law students. According to Wikipedia, “The society was started by a group of some of the most prominent conservatives in the country, including Attorney General Edwin Meese” and “Reagan Supreme Court nominee Robert Bork,” among others. Its membership has since included Supreme Court Justices Antonin Scalia, John G. Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch.”
Kaplan has served as counsel to various House Committees and the DOL. He was the Workforce Policy Counsel to the House Education and Workforce Committee. In this position, he drafted the so-called Workforce Democracy and Fairness Act, which if enacted was designed to overturn the Obama Board’s reforms for faster union elections. He also fought against new overtime rules that would have given paid overtime to millions of workers not receiving it.
There is a 30-year long history of pro-employer anti-union Republican Presidential and Congressional efforts to undercut the Board’s ability to enforce workers’ rights. Massive cuts to its budget were made in the past so it could not effectively function. Anti-union advocates from management were put on the Board. Numerous judicial challenges resulted in Supreme Court decisions voiding hundreds of Board decisions. Unfortunately, the danger we now face to workers’ rights is worse than ever before.
The labor movement should contact its Democratic allies in the Senate and House to do everything they can to prevent or at least slow down these appointments. Only by doing so, can the Democratic Party regain the allegiance of working people because such a campaign will help educate a large number of people about the disconnect between Trump’s professed support for unions and his actions which threaten to undermine and destroy the labor movement.
*Larry Cary is a labor lawyer. His firm, Cary Kane LLP, represents unions, employees, and union affiliated employee benefit funds. For information about his firm navigate to www.carykanelegal.com.