Under Trump, Uncertainty Ahead for Labor Issues National Labor Relations Board Likely to Take New Focus, Some Say

By Moore, Daniel | Pittsburgh Post-Gazette (Pittsburgh, PA), December 4, 2016 | Go to article overview

Under Trump, Uncertainty Ahead for Labor Issues National Labor Relations Board Likely to Take New Focus, Some Say


Moore, Daniel, Pittsburgh Post-Gazette (Pittsburgh, PA)


From the moment the doors opened at Rivers Casino in 2009, hourly workers who provide hospitality services at the North Shore venue - food and beverage staff, valets, maintenance workers and others - have been trying to organize a union.

And it's been an acrimonious seven years, marked by public mudslinging from both sides that spurred dozens of allegations against management filed with the National Labor Relations Board.

The regional office for the board - a federal agency that steps in to protect the rights of most private sector employees to organize for better working conditions - eventually found merit in 17 allegations, including that casino management has "swarmed, hovered and monitored workers" considering joining a union.

For the last eight years, the NLRB has been seen as quick to backstop labor causes nationally. Intervening in the Rivers Casino dispute was a low-impact move compared with larger, national mandates: Limiting what employers can say in employee handbooks, speeding up unionization elections, giving graduate research and teaching assistants at private universities the right to unionize, and ruling that two companies can be jointly responsible for working conditions.

But, like pretty much everything else in the political landscape, that is likely to change with Donald J. Trump's election last month, labor experts said. As Mr. Trump builds his Cabinet and begins mulling nominees for the labor relations board, issues large and small could turn in the other direction.

"With a Republican-controlled board, with a different kind of lens when the board reviews a policy, it might weigh more on the side of the employer," said Daniel Schudroff, an attorney for New York-based Jackson Lewis PC. "There's a reasonable chance that the board will shift back to pro-business."

Death by 1,000 paper cuts?

The makeup of the National Labor Relations Board has inevitably changed with the ideology of each presidential administration.

The board's five members are appointed by the president, and confirmed by the Senate, for five-year terms. The general counsel, appointed by the president to a four-year term, is responsible for the prosecution of unfair labor practice cases and supervises 26 regional offices, including the one in Pittsburgh.

To get the board's attention, an individual or group can file a charge of unfair labor practice with a regional office.

Charges can allege violations by an employer or violations by a labor union - though employers more often find themselves on the defensive. Violations include employers refusing to recognize a legally formed union, a failure on either side to bargain in good faith, or discrimination against employees to discourage or encourage unionization.

If the regional office finds merit in a complaint, the regional director - in Pittsburgh, this is Nancy Wilson - issues her own complaint.

Across all regional offices in the fiscal year ended Sept. 30, 21,326 unfair labor practice charges were filed, 6,010 settlements reached and 1,272 complaints issued by the regional directors, according to the board's website. The rest of the charges were withdrawn or dismissed.

After a hearing, an administrative law judge makes a decision on the unfair labor charge. That decision can be appealed to the labor relations board in Washington, D.C., and, from there, to the U.S. Court of Appeals and the U.S. Supreme Court.

John Cerilli, an attorney with Pittsburgh-based law firm Littler Mendelson, said that, unlike other offices of the executive branch, the labor board rarely uses its rulemaking power.

Rather, he said, the board's general counsel targets a group of cases that represent a change in policy. By issuing enough decisions, it establishes case law.

"Depending on what side you're on, looking at these changes in the case law, it's death by 1,000 paper cuts. …

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