NLRB exemplifies reactionary Trumpian administrative state

Since Donald Trump became president he has attacked the loyalty, honesty and competence of the federal government workforce, from the FBI to the Environmental Protection Agency (EPA).  His supporters conjure up the specter of a “deep state” conspiracy composed of government bureaucrats intent on undermining the chief executive officer.

But now, President Trump is in control of all federal administrative agencies, having picked the heads of virtually every one. So, what are the characteristics of the administrative state, remade in Trump’s image?

For insight, look to the National Labor Relations Board (NLRB), a small agency with a vital role in protecting the rights of U.S. workers to organize, bargain for higher wages and join together to protest discrimination, safety hazards and other unfair treatment — in other words, to stand up for themselves.  

President Trump has appointed a majority of the NLRB members, including the current chair, as well as the board’s general counsel, who serves as the agency’s chief prosecutor.  

Trump’s NLRB has four distinctive characteristics:

First, the agency is purely reactionary. It has no vision of how the law should promote healthy and productive labor relations, but seeks only to erase the recent past. This was exemplified in the priorities expressed by General Counsel Peter Robb in a memo issued two weeks after he took office, in which he identified critical cases the board’s regional offices are required to send to Washington for review. As Robb’s memo said, “New General Counsels have often identified novel legal theories that they want explored.” But, he continued, “I have not yet identified any such initiatives.”  

Instead, Robb asked that he be brought every important case decided in the past eight years — i.e., by the Obama board — so he could ask the board to overturn them. “Significant legal issues,” Robb wrote, “include cases over the last eight years that overrule precedent and involved one or more dissents.”  

The Supreme Court stated in 1975 that it was the NLRB’s duty “to adapt the Act to the changing patterns of industrial life.” The Trump board is not interested in the future of work; it appears instead to want to make American labor law obsolete again.

Second, while Trump claims to speak for American workers, he has staffed the NLRB with longtime frontmen for their corporate employers. Two of the three members of the Trump majority, Chairman John Ring and member William Emanuel, came from large, management-side law firms with numerous cases before the agency. That has caused trouble for Emanuel, when he voted to overturn an Obama precedent from a still-pending case in which his firm represented one of the parties. The agency’s Inspector General found this was “a serious and flagrant problem.”

And now, Ring and Emanuel have refused to recuse themselves from a case against McDonald’s — arising from the discipline of fast-food workers who struck in order to be paid $15 per hour — even though the board members’ former law firms advised the hamburger giant and its franchisees about how to resist worker demands.

Third, despite the president’s rhetoric, his NLRB is not deregulating but, rather, selectively regulating — that is, regulating unions but not employers. In May, Bloomberg reported that Trump’s general counsel is “on pace this fiscal year” to reverse career employees’ decisions not to prosecute seven times more often in cases against unions than against employers.

Fourth, Trump’s NLRB has contempt for procedural norms and fairness. Over the past several decades, the board has given public notice when it is considering reversing precedent or establishing new policy in a case, in order to give every affected person a chance to weigh in.  But Trump’s board repeatedly has reversed precedent not only without public notice but several times in cases where no party asked it to do so, i.e., in the absence of any public input on the issue. 

Dissenting in one such case, the last remaining Obama appointees stated, “The choice to issue such a momentous decision . . . without allowing any additional input is completely inconsistent with the Board’s practices, and with principles of reasoned decision-making.” They rightly called such activity “unconscionable.”

The ultimate result of these characteristics of the Trumpian administrative state is that laws are being used to silence and oppress the very people they were intended to protect — workers, borrowers, consumers.  

This was exemplified last week when Trump’s NLRB reversed a judge’s finding that Electrolux, an oven manufacturer in Tennessee, unlawfully fired J’Vada Mason, an assembly line team leader, who had distributed unions cards and flyers and worn a pro-union T-shirt. When Mason raised her hand and attempted to answer management statements about union dues and a strike, the plant manager told her to “shut up” and that she “didn’t know what she was talking about.” Electrolux then fired Mason, allegedly for insubordination, but could not explain why she was treated more harshly than other employees.  

The sole dissenting NLRB member observed that the decision “marks the first time in history the Board has declined to find a violation of the Act when there is clear reason to infer an anti-union motive and no evidence . . . of any other lawful motive.”

The Supreme Court stated more than three decades ago that “an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.” But Trump’s administrative agencies appear to reflect his character, not his choice of “wise policy.” Judging by the NLRB, the Trumpian administrative state is reactionary, unfair and in the service of the rich and powerful.      

Craig Becker is general counsel to the AFL-CIO, the largest federation of unions in the United States with 55 member unions that represent more than 12 million active and retired workers. He served as a member of the National Labor Relations Board from 2010 to 2012. Follow on Twitter @AFLCIO.