Gabrielle “Gay” Semel is a retired union-side labor lawyer. She was District Counsel to District 1 of the Communications Workers in New York for more than 30 years. She also worked as a field attorney at Region 2 of the NLRB in Manhattan for two years. I have worked with Gay on arbitration cases for CWA Local 1101, and thanks to her we have won many cases. Pete Marchese – Director of Operations
Since Trump appointees became the majority on the five-member National Labor Relations Board in Washington, D.C., the Board has weakened worker rights—or announced its intention to do so—regarding mid-term bargaining, picketing, the use of “Scabby the Rat,” the size of bargaining units, joint employer issues, handbook rules, and more.
As at other federal agencies, Trump’s appointees to the NLRB are eroding the very rights the agency is charged with protecting. Their template for action is not the goals set forth in the Act, but the wish list of the Chamber of Commerce.
Can workers still use the Board? The answer is yes…and no. The purpose of this article is help local union officers, stewards, and activists figure out when to go to the Board, what to expect, and when to stay away.
If possible, it’s a good idea for rank and filers to coordinate with their local unions, and for local unions to coordinate with their regional or international unions, which generally have their own legal departments or counsel.
The big-picture situation at the agency under Trump is not good. But in certain situations, the Board is still the only place workers can go for legal protection, and workers shouldn’t let the president’s pro-corporate appointees scare them out of ever exercising their rights.
Going to the Board
When you “go to the Board” you are actually going to the regional office closest to you.
The first step is to file an unfair labor practice charge at the Region or on the NLRB’s website (nlrb.gov). If you have questions, you can call the Region and ask for help.
After your charge is filed, you will be contacted by an NLRB attorney or field examiner (known as board agents). You will have to provide an affidavit (which they will draft based on what you tell them) and any supporting documents you have. They may also want to take statements from other witnesses. Try to marshal your evidence—documents and other witnesses—before filing your charge.
After hearing what you have to say, they will contact the employer to get the employer’s side of the story. They may then come back to you and ask for additional information. All of this happens quickly, so be prepared.
After the investigation stage is complete, the regional director reviews the investigation materials developed by the board agent and decides if it is more likely than not that a violation of the Act has been committed.
If so, the Region will try to settle the case. If a settlement cannot be achieved, the regional director will issue a complaint and a Board attorney will prosecute the case before an administrative law judge (ALJ). If not, your charge will be dismissed.
Once the ALJ issues a decision, you, the employer, or the attorneys for the Region can appeal the decision to the Board in D.C. That is the group of mostly Trump appointees now eroding worker rights.
The right of private sector workers to organize, form unions, and engage in concerted action for their own mutual aid or protection is enshrined in Section 7 of the NLRA and informs much of what the NLRB does.
Although the Trump Board (like the Boards under Reagan and both Bushes) seeks to narrow those rights, Section 7 rights are at the heart of the Act and will generally be enforced. Run-of-the-mill cases are still being processed, complaints issued, and resolutions achieved.
You need to be careful if your case becomes part of an appeal, as discussed below. But most cases in which a complaint is issued settle before even going to trial. Very few are appealed to the Board. So in most cases, things will proceed at the Regions as before. (For an overview of how the process works, see box “Going to the Board.”)
Most board agents believe in the mission of the agency and are horrified by some of the initiatives of the Trump appointees. In fact, through their unions and professional associations, they have helped stop some of the worst Trump-appointee proposals on how the agency functions.
They will help you understand the evidence you need, but they cannot develop it for you. It is very important to be prepared when you go to the Region. Of course, legal action is just one tool. Workers have many other tools, as readers of Labor Notes well know, and should continue to use them.
IF YOU HAVE NO UNION
I’m often asked questions about what employers can legally do if there is no union. Unfortunately, the answer to “Can my boss…?” is usually “Yes.”
Bosses can do pretty much whatever they want, unless there is a law stopping them (and unless that law is enforced). For example, a worker in a nonunion workplace can be fired for being late once, for wearing the wrong hat, for rolling her eyes at some dumb instruction, or for any other nonsensical reason. Workers can be disciplined or fired for any reason, or no reason—with two big exceptions.
Most people know that federal law prohibits discrimination based on race, gender, religion, age, or ethnic origin. If you believe that happened to you, you should file a charge at the Equal Employment Opportunities Commission.
But federal law, specifically Section 7 of the NLRA, also protects against another form of discrimination—discrimination based on union activity or other forms of concerted action, i.e. action involving two or more people.
If you are disciplined or discharged for trying to organize a union, or even if you are only threatened with discipline or discharge, the NLRA protects you and you should file a charge. Studies have shown that workers are fired in one out of every three union organizing campaigns. These discharges are illegal.
Admittedly the penalty is weak and the remedies insufficient, but the Board is still the only place to go for legal protection in these cases. Workers who file charges and can prove that they were fired because of their union activity or for engaging in concerted activity are entitled to get their jobs back, plus back pay. This is one area where workers can and should still go to the Board.
Workers can also go to the Board for engaging in concerted activity that is less formal than organizing a union. If you are unhappy about conditions at work—harassment, not enough time to eat lunch, dirty bathrooms, whatever— and you decide to complain to your boss, don’t go alone. If you go with other workers, or if you and others circulate a petition, or even if you and others meet first about these complaints, you are engaging in concerted action because you are working together and that action is protected. Workers who have been threatened, disciplined, or fired for concerted activity can and should file a charge at the Board.
Most efforts to organize a union involve filing for a union authorization election, conducted by the Board. Although union organizing is always difficult, representation petitions are still being processed as before. Unfortunately, the faster election rules enacted by the Obama board have just been overturned, meaning employers will do all they can do to delay a vote.
IF YOU HAVE A UNION
Collective bargaining is governed by the NLRA. Once a contract is reached between a union and an employer, most workplace issues are governed by the collective bargaining agreement.
Grievances are addressed through the grievance and arbitration process, and the NLRB is not a backstop for the grievance procedure. The Board does not have the authority to address contract grievances. Charges claiming contract violations will be dismissed.
But there are still instances when workers covered by collective bargaining agreements can and should go to the Board.
One example is Weingarten rights. When workers are called into an investigatory interview which they reasonably believe could lead to discipline, they have the right to bring a union steward with them. If Weingarten rights are refused, the worker or steward involved should file a charge with the Region. A finding that the employer violated a worker’s Weingarten rights will not undo the discipline, but it may help discourage the employer from committing the same violation with other workers.
Another example is information requests. In preparing for grievances, union stewards ask employers for copies of relevant documents. The right to request information for a grievance comes from the NLRA. When requested information is not provided or is stalled beyond a reasonable time, stewards may file a charge at the NLRB. Charges filed in support of information requests are run-of-the-mill charges and are still being handled by the Regions.
There is a short statute of limitations at the Board. A charge must be filed within six months of the violation or it will be dismissed. There are no exceptions.
Before you file a charge, know the facts. Make sure that you have pulled together all the relevant documents.
If there are other witnesses to the events, they need to know that they may be asked to give a statement (an affidavit drafted by a board agent based on what they tell the agent). You may be asked to contact the witnesses and set up interviews, or the board agent may contact relevant witnesses on their own.
Be aware that the agency has internal time targets as to how long each phase of the investigation should take. The Trump-appointed General Counsel for the agency has tightened those targets.
Be prepared to provide evidence quickly once you file a charge. But if you feel that you are being pushed too quickly and you cannot present all your evidence right away, push back and demand a “complete investigation”—it may buy you some time.
WHEN TO STEER CLEAR
Do not go to the Board with allegations that you cannot prove. Rumors or statements that “everyone knows” are not evidence. You need to find people who actually witnessed what you are alleging or documents that show what you are asserting. Without evidence, your charge will be dismissed.
Do not go to the Board because you feel that you are being harassed generally, unless you feel it is because of your union or concerted activity. You will need evidence to prove that you were an activist and that your boss knew it (for example, the boss saw you hand out union leaflets) and also proof the boss was hostile to your union activities (for example, the boss made a negative statement to you or someone else about unions or your activity, or clearly treated you differently from other workers).
Sometimes, you will need to withdraw your charge. If you get a feeling that the board agent you are dealing with is hostile to your claim, you can withdraw before the charge is dismissed. You might want to withdraw to prevent your boss from bragging about the dismissal or to stop a negative ruling that could be used against a similar claim down the road. You have the right to appeal the dismissal of your charge, but usually it is not worth doing so, since less than 5 percent of appeals are ever granted.
You can also withdraw your charge if you believe that your case will be used to make bad law. How to figure that out is, of course, very difficult. But if you get that sense, try to talk to someone with knowledge of labor law who can help you figure it out. Once the Region issues a complaint, it may be too late to withdraw.
Most cases get resolved or settled at the regional level. But if you get a winning decision after a trial with an administrative law judge, and your employer plans to appeal, you should discuss next steps with a lawyer. Note that labor law is a highly specialized area of the law. Most lawyers know nothing about it and will not necessarily give you good advice. If you are seeking legal help, look for an attorney who practices union-side labor law.