//  12/17/19  //  Commentary

December has been a cruel month for workers seeking redress before the National Labor Relations Board.  Three years into the Trump administration, the Board (with its Republican majority) is leaning into its political agenda, issuing decisions that will further shift the balance of power towards employers and away from workers. Last Thursday, the Board let McDonald’s off the hook, approving a scant settlement rather than allowing an administrative law judge to decide whether the company was jointly responsible for labor law violations committed by its franchisees. The next day, the Board issued changes to the procedures governing union elections, designed to slow the process and thus give employers more time to erode employees’ support for union representation.

The NLRB has five seats, filled by Senate-confirmed presidential appointees. Recent tradition has been for three members to come from the President’s party, and two from the other party. But Board membership has turned into a political football as workers’ and unions’ rights have become an increasingly partisan issue. As a result, Board seats can sit open for months or years – a dynamic underscored by the fact that the Supreme Court has heard two major cases about the NLRB’s composition in the last decade.

The Board has had four members since August 2018, when former Democratic Member Mark Gaston Pearce’s term expired. (President Trump re-nominated Member Pearce to serve an additional term, but the Senate did not act on the nomination and Pearce eventually withdrew.) As of Monday, that number went down to three, as remaining Democratic member Lauren McFerran’s term came to an end. Now, the NLRB will be controlled by its three Republican members.

The Trump NLRB has already demonstrated its unusual capacity for outcome-driven and politically motivated reasoning that undermines workers’ rights. But Member McFerran’s dissents have been a silver lining – she (like former Member Pearce) has issued a stream of dissents that clearly and forcefully identify the substantive and procedural problems with each of the majority’s analyses. For example, in the McDonald’s case, she wrote:

“At the urging of the current General Counsel, the majority today disposes of a mammoth and important joint-employer case under the National Labor Relations Act—before it requires the Board to apply a precedent that both the majority and the current General Counsel have tried unsuccessfully to repudiate. Reversing the administrative law judge, the majority approves a series of informal settlement agreements (omitting a Board order) that do not impose joint and several liability on McDonald’s as a joint employer and that prevent a complete evidentiary record from being developed here. The majority’s decision is based on application of the wrong standard of review, and it reaches a result that plainly does not “effectuate the purposes and policies” of the National Labor Relations Act.”

On the election procedures revisions, she was even more damning, summarizing her dissenting opinion on in a Twitter thread:

“Without notice or public input, the majority more than triples the time it will take workers to get from petition to certification in a contested union election.  In its 84-year history, the Board has never before intentionally added substantial delay to the election process. This is a textbook example of arbitrary agency action.  The majority makes radical changes to the election process without any factual basis at all -- indeed, they make a determined effort to avoid examining relevant, readily-available data.  From this troubling approach comes an even more troubling result: adding delay to the election process undermines the very purpose of the NLRA and places an unjustified burden on workers seeking to exercise their fundamental workplace rights.”

These well-crafted dissents are valuable for at least three reasons. First, many NLRB decisions can be appealed to federal circuit courts, where dissents can highlight substantive issues and departures from common NLRB practice – which are especially valuable because many federal judges are unfamiliar with labor law. Second, these dissents can help educate and inform the interested public, including labor journalists and workers themselves. And third, these dissents can help chart a course for a future Board that aims to empower workers and unions.

Now that Member McFerran’s term is up, expect the 3-member Republican board to crank out anti-worker decisions at an even more rapid pace, with no dissenting members to call out dubious legal reasoning, misapplied precedent, and ethical lapses. This is the larger lesson of the Trump Board, amply highlighted through Member McFerran’s and Member Pearce’s dissents: Board members can easily pull the rug out from under workers’ collective action when they put their minds to it. To solve that problem, Congress must reform our labor law so that workers’ rights do not hinge on NLRB membership. The Protecting the Right to Organize Act, now pending in the House, would accomplish this while providing a much-needed update to labor law in light of changing working conditions. But in the meantime, President Trump should appoint, and the Senate should confirm, two Democratic members to the now-empty Board seats.


The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

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5/6/20  //  Commentary

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Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

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