ABOVE: Photo via the National Labor Relations Board Facebook page.
The National Labor Relations Board is seeking under the Trump administration to axe LGBTQ non-discrimination language — as well as protections based on race, sex and religion — from its union contract with professional attorneys within the U.S. agency as part of collective-bargaining negotiations, according to union representatives.
The union, known as the National Labor Relations Board Professional Association, is made up of about 120 attorneys at the NLRB headquarters in D.C.
“They’re taking it all out,” one NLRBPA member said. “They’re basically saying it’s duplicative, it’s covered by statute, so we don’t want to do anything through grievance and arbitration. If you think there is discrimination, then you need to a file complaint with the EEOC.”
The NLRBPA is pleading with Rep. Jamie Raskin (D-Md.) and Sen. Dianne Feinstein (D-Calif.) to step in and urge the agency to keep those non-discrimination protections in place within the union contract. Individually, LGBTQ employees with concerns over removal of the non-discrimination protections also sought to meet with management on the issue, but were rebuffed, union members told the Washington Blade.
For the time being, NLRB is required to maintain the non-discrimination protections from the previous contract, even though that contract expired last year. But that situation is expected to change soon. As a result of executive orders signed by President Trump last year, federal employee unions are required to engage in negotiations with their respective agencies to form new contracts.
In a pair of letters dated March 5, the NLRPA calls on Raskin and Feinstein to engage in oversight of the agency as it seeks to eliminate those non-discrimination protections. One letter calls the proposal “a giant step backward in the fight to ensure that LGBTQ workers receive equal treatment under the law.”
“It is a mark of shame that employment discrimination against LGBTQ employees, including federal employees, has been tolerated for so long, and to callously take any protections away after so long a struggle for equal treatment would be unconscionable,” one letter says. “In that spirit, we would be most grateful for any oversight of the agency and help that you can provide to defend the workplace rights of our LGBTQ brothers and sisters.”
The letters also express other concerns. Among them is NLRB proposing to eliminate a standing joint labor-management Equal Employment Opportunity Committee, a reversal the union says turns “historically a cooperative relationship between management and the union into an adversarial relationship.” The NLRB also proposes to undercut the grievance and arbitration system in other ways, the letter says.
Raskin, in a statement to the Blade responding to the letter, said NLRB’s proposed removal of LGBTQ protections is unjust, especially from a U.S. agency charged with enforcing federal labor law.
“Trump’s administration has tried from the start to purge all mention of LGBTQ rights from federal law and policy,” Raskin said. “Now, by proposing to eliminate protections for LGBTQ employees from its collective bargaining agreements, the NLRB — which is supposed to be a leader for workplace fairness—becomes the latest perpetrator of the administration’s political assault on equal protection and equal employment rights for the LGBTQ community.”
NLRB, according to members of the union, justified its proposed removal of the non-discrimination protections on the basis that employees could seek recourse against discrimination under Title VII of the Civil Rights Act of 1964, a federal law that bars discrimination on the basis of race, color, religion, sex and national origin.
But that law as it stands affords no protections based on sexual orientation or gender identity. Although the U.S. Supreme Court is considering litigation that will decide whether anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII, there is no certainty that will happen.
Should the Supreme Court rule Title VII doesn’t cover anti-LGBTQ discrimination, NLRBPA attorneys would have no recourse under federal law for LGBTQ discrimination claims.
NLRBPA employees — even though they work within D.C. — also aren’t covered by the D.C. Human Rights Act. Although the law bars anti-LGBTQ discrimination, the D.C. Human Rights Act doesn’t have jurisdiction over federal entities, such as NLRB.
Over the course of contract negotiations, one NLRBPA member said, management was unmoved by the argument LGBTQ non-discrimination protections are needed in the union contract because the Supreme Court might be against them under Title VII.
“There’s a possibility we’re not going to be covered by statute, so we will have no protections whatsoever,” the NLRBPA members said. “And my understanding was the agency response was, ‘We can’t control what the Supreme Court does.”
According to the NLRBPA, non-discrimination protections based on sexual orientation have been part of the NLRBPA contract since 2002 and non-discrimination protections based on gender identity have been part of the contract since 2017. Although that contract was terminated in 2019, the agency remains legally obligated to enforce it until a new contract agreement with the union is reached.
“So you can imagine our dismay when we received contract proposals from management eliminating the contractual provisions prohibiting discrimination based on sexual orientation and stating that any ‘prior MOUs, agreements, or settlements executed prior to the latest date below are not incorporated into this agreement,’” the letters say.
Outside of union negotiations, the letter says, a group of LGBTQ employees sought to meet with senior management to discuss concerns over the removal of the non-discrimination language, but were unsuccessful.
Adam Naill, an NLRB attorney and NLRB union official, affirmed to the Blade via email a group of LGBTQ employees were denied a meeting with management outside the negotiations.
“A number of LGBTQ folks at the agency attempted to meet with NLRB senior leadership to just express their concerns about the proposal and how they’re feeling — frightened and alarmed — about management’s position on this and were rebuffed, senior leadership said they wouldn’t meet with employees about the issue,” Naill said.
The NLRB justified denying the meeting, one NLRBPA member said, by giving assurances the agency is committed to LGBTQ equality and saying the meeting would be inappropriate amid ongoing contract negotiations.
But the NLRBPA member expressed doubt about that commitment to LGBTQ equality based on attorneys in the workforce overheard making homophobic statements.
“Among some of the rank and file attorneys, those people who very likely in the coming years will probably be promoted to supervisors, there’s been several times overhearing some very problematic homophobic, misogynist statements coming from them,” the NLRBPA member said.
The office of Feinstein didn’t respond Monday to the Blade’s request to comment on the proposed removal of LGBTQ protections. The NLRB declined to comment for this article, citing a practice of withholding commenting on contract negotiations with unions.
Jerame Davis, executive director of the LGBTQ labor group Pride at Work, condemned NLRB in a statement to the Blade, but said this move is consistent with the policy of the Trump administration.
“As taxpayers, we should expect that all working people — including LGBTQ working people — would be protected from discrimination in a federal government job,” Davis said. “But it is particularly insulting that these protections are being stripped from the working people who protect our country’s workforce from unfair labor practices. There is little that has been consistent with this administration, but their attacks on LGBTQ people have come regularly, like clockwork.”
The union for the professional attorneys at NLRB is different from the union for the 1,200 employees in the field offices, which is the known simply as the National Labor Relations Board Union, or NLRBU.
According to NLRBPA, the sister union is also currently engaged in contract negotiations, but they’re still bargaining over ground rules and haven’t made substantive proposals. The Blade emailed NLRBU seeking a comment on the situation.
NLRB chair John Ring and NLRB general counsel Peter Robb are set to testify on Tuesday before the House Appropriations Committee on the Trump administration’s budget request. It remains to be seen whether the agency officials will be questioned on the proposed non-discrimination omission from the union contract.
