June 30, 2017
Ryan Williams 202-677-7060


The Trump Labor Board’s List

June 28, 2017
The Wall Street Journal

President Trump is finally filling out the National Labor Relations Board, and not a moment too soon. Repudiating the Obama NLRB’s radical rulings will take time, but Congress could lend a hand.

Last week Mr. Trump nominated Marvin Kaplan, counsel at the Occupational Safe and Health Review Commission, to one of two vacancies on the board. And this week the President rounded out the five-member board by naming William Emanuel, an employment lawyer at Littler Mendelson who helped challenge the Obama NLRB ruling that bars class-action waivers in arbitration agreements. The Fifth Circuit Court of Appeals rejected the board’s theory, and the Supreme Court has agreed to hear the case.

Both are well-qualified attorneys who will hew to statutory or case law. They are unlikely to get rolled by union-friendly staff who have sometimes been more knowledgable and influential than the board’s GOP members.

The nominations will give Republicans their first board majority in a decade, and there’s little time to waste. Some 360 cases are pending before the board, many of which present opportunities to correct recent board rulings that depart from longstanding precedent. The Coalition for a Democratic Workplace last year estimated that the Obama NLRB overturned 4,559 years of established law.

One example is the 2015 Browning-Ferris decision, which created a new “indirect influence” joint-employer standard that has upended contractual relationships as well as the franchise business model. The ruling, which nullified three decades of board and judicial precedent, allows unions to drag companies into labor disputes with subcontractors and franchisees.

Also pivotal is the 2011 Specialty Healthcare decision that let unions form micro-bargaining units within a “community of interest” that shares job classifications, functions and skills, among other commonalities. This lets unions use a divide-and-conquer strategy to organize workplaces.

Last year the board melded Browning-Ferris and Specialty Healthcare by ruling that employer consent isn’t needed for bargaining units that combine jointly employed and solely employed workers. Other Obama NLRB departures include letting university teaching assistants unionize and letting workers defame their company on social media and keep their jobs.

Don’t forget how the Obama NLRB rigged union election rules to deny employers due process. One change restricted employers’ ability to dispute the eligibility of workers in a bargaining unit before an election. And an expedited election schedule limits employers’ opportunity to present their case to employees. While employers can contest the board’s decisions in court, President Obama packed the D.C. Circuit Court of Appeals with liberal judges who are inclined to defer to the board’s judgment under the Chevron standard.

This is why it’s important for the GOP Congress to clarify ambiguities in the National Labor Relations Act that unions have exploited to give themselves organizing advantages that Congress never intended. For starters, Congress could codify the direct control joint-employer standard as well as union election procedures that protect employer and worker rights.

Legislation would protect the Trump NLRB’s decisions against legal challenges from the left while hemming in future Democratic majorities. Otherwise, employers will have to fight the same battles the next time a Democrat is elected to the White House.

To access the editorial, click here.

The Workforce Fairness Institute is an organization committed to educating voters, employers, employees and citizens about issues affecting the workplace.  To learn more, please visit:

To schedule an interview with a Workforce Fairness Institute representative, please contact Ryan Williams at (202) 677-7060.


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AZ Daily Sun--Coconino Voices: PRO Act legislation would hurt local businesses

— 05.13.2021 —
By: Julie Pastrik Arizona businesses and workers have had an incredibly challenging year given the economic slowdown that followed in the wake of the coronavirus pandemic. However, local businesses and industries across the state are resilient and on the road to a strong recovery that will mean more jobs for Arizona workers and increased economic development to strengthen our communities. That is, as long as Congress does not move forward with potentially devastating legislation that would hurt local employers and employees alike while impeding our state’s economic recovery. Unfortunately, some members of Congress seem determined to do just that by pushing through the Protecting the Right to Organize (PRO) Act. As harmless as the name may sound, the PRO Act would have serious repercussions for local businesses, particularly smaller ones, while undermining long-standing rights for employees and threatening the growing gig economy that has helped provide much-needed income for so many during this time. Arizona is fortunate to have leaders like Senators Mark Kelly and Kyrsten Sinema, who have both refrained from joining the vast majority of their Democratic colleagues in cosponsoring the PRO Act. In a slap in the face to Arizona workers, the PRO Act removes one of the most fundamental rights a worker has when it comes to voting in elections to determine whether to unionize: the secret ballot. Instead, workers could be forced to sign union authorization cards in front of other employees, their employer, or union organizers. This bill would also destroy workers’ right to privacy by allowing unions access to personal information, including their home address and personal phone number. If that doesn’t open the door to union intimidation and harassment, I don’t know what does. As if that was not bad enough, the PRO Act would create major new challenges for Arizona businesses, making it harder for them to create jobs, expand in their communities, and even keep their doors open. It would redefine what it means to be a “joint employer” under national labor law, greatly complicating existing relationships between franchisors and franchisees as well as between business owners, contractors, subcontractors, and vendors and suppliers. At the same time, it would interfere with attorney-client confidentiality and make it much more difficult for small businesses to secure a legal advice on labor issues. Particularly harmful during these times, the PRO Act would apply a failed policy from California to national labor law by using the “ABC” test to determine whether a worker is an independent contractor or employee. This makes it much harder to qualify as an independent contractor, threatening the freedom and flexibility that tens of thousands of Arizonans find in independent contracting and gig economy work. Ultimately, the PRO Act is bad public policy that only works for union leaders to inflate their falling ranks while threatening workers’ rights, undermining small businesses, and jeopardizing a growing part of our economy. This is not a good solution for Arizona, and Senators Sinema and Kelly should stay firm and not cosponsor this misguided legislation.
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