|
Donald Trump is no friend of unions, as his order to unilaterally abrogate the government’s contracts with its federal employees’ unions makes unmistakably clear. But in this, Trump deviates from the traditional Republican opposition to unions only in degree. Ronald Reagan established the party’s savage hostility to independent workers’ organizations when he sacked striking air traffic controllers in 1981. Since then, every Republican president has appointed anti-union and management-side officials to head both the Labor Department and the National Labor Relations Board (NLRB), despite the fact that the NLRB was established to ensure workers’ rights to collective bargaining.
In recent months, the five-member NLRB has been down to a bare two members, since Trump fired Board member Gwynne Wilcox, a Democratic appointee whose term, set by Congress, is supposed to run until August 2028. Trump’s sacking Wilcox violates the law as confirmed by a unanimous 1935 Supreme Court decision that forbade presidents from firing the members of regulatory commissions and boards with fixed terms, save for reasons of misconduct, which neither Trump nor anyone else has alleged is the case with Wilcox. With only two current members, however, the NLRB lacks the quorum required to rule on cases, and some companies have used that as an excuse to not recognize the unions for which their employees have voted to represent them. A number of observers had thought that Trump would make no appointments to the Board, thereby putting it into a de facto if not de jure state of impotence, and enabling businesses to violate labor law to their hearts’ and pocketbooks’ content since there’d be no cop on the beat.
But Trump has opted to go the traditional post-Reagan Republican way instead. Last week, he nominated two new members to the Board, one a longtime management-side labor lawyer, the other a veteran NLRB attorney who has worked as chief counsel for previous and current Republican board members.
The management-side attorney is Scott Mayer, who’s been the chief labor counsel for Boeing since 2022. Before that, he had similar roles at the MGM Resort and IHG hotel chains, and also had a brief tenure at the Morgan Lewis law firm, a resolutely anti-union firm from which Trump’s nominee to be the NLRB’s general counsel, Crystal Carey, also comes. One union observer says Mayer is open to interaction, if not agreement, with unions, citing his attendance at Labor Section meetings of the American Bar Association, which bring together attorneys on both sides of the bargaining table. And at least one union leader who was engaged in bargaining with Mayer while he was representing hotel companies found him both affable and open to compromise—but also notes that what he’ll do on the Board will almost surely “be less about him and more about what the administration wants.”
The other nominee, James Murphy, is more of a known quantity. He’s worked at the Board since 1974, in recent decades writing or editing some notable decisions and dissents issued by the Republican Board members whom he’s staffed. Among those dissents was one by then-Board member Brian Hayes that argued that employers could tightly restrict their employees’ access to their workplace and environs either before or after their shifts, which would have effectively precluded union members and activists from interacting with their fellow workers. The majority opinion had ruled that such a policy “would reasonably lead employees to believe that their Section 7 [i.e., union] activity in the interior areas of [their workplace] is prohibited without prior managerial approval.” One union advocate terms Murphy’s nomination “a scary proposition,” because, if confirmed, “he would hit the ground running because of his knowledge of NLRB staff, systems and processes.” |
