//  3/21/17  //  Commentary

The last eight years have been decidedly mixed for the American labor movement. Traditional union strongholds like Michigan and Wisconsin have gone “right to work,” and the Supreme Court has decided key cases in ways that threaten unions’ funding streams. But at the same time, the National Labor Relations Board made key advances, backed by President Obama and a Senate controlled by Democrats through most of Obama’s presidency.

Now, the new political reality of the Trump era is emerging: January 20, 2017 marked the beginning of a new age in which labor has fewer allies in Washington’s corridors of power than at any time since the 1920s. This post provides an overview of the many challenges and threats that the American labor movement is likely to face during the Trump presidency. In future posts, I will explore these and other issues concerning unions and workers in more depth.

The NLRB in the Obama Years: Unfinished Business

Employer groups and Republicans have made no secret of their disdain for the NLRB under President Obama. And it is true that the Obama Board was a friend to labor, though a more measured one than many of its critics have suggested. Its legacy includes decisions addressing the “fissured workplace,” in which multiple enterprises share responsibility for employees’ working conditions; the inclusion of more workers under labor law’s umbrella, including graduate student workers; and greater focus on how employers stymie their non-union workforces’ ability to engage in collective action.

The big question underlying all of these issues is how collective bargaining should operate in modern workplaces. For example, consider temporary workers, who are often mostly indistinguishable from their permanent-employee counterparts, though an intermediary signs their paychecks. Should these “leased” employees be able to link arms with their coworkers at the bargaining table? This summer, the Board answered “yes,” observing both that the use of temp workers has exploded in recent years, and that employers can use temps to undermine their permanent employees’ bargaining demands, and vice-versa.

Similarly, in 2015, the Board made it easier for workers to bring to the bargaining table “joint employers,” who share partial or indirect authority over working conditions, such as when an employer contracts part of its on-site operation out to another company. The key takeaway from these and other cases is that the Obama Board interpreted the NLRA to facilitate meaningful bargaining by ensuring that the authority to determine working conditions and the obligation to engage in collective bargaining go hand-in-hand.

Additionally, the Board and its top prosecutor have paid close attention to the NLRA rights of the more than ninety percent of private sector workers who do not belong to a labor union. The Board’s General Counsel prioritized winning reinstatement for workers who were fired or punished as part of employers’ attempt to “nip in the bud” nascent collective action, as well as fighting common employer rules that violate the NLRA, such as those that forbid workers from discussing their pay or working conditions. And in 2014—nearly 45 years after the first email was sent—the Board protected employees’ rights to use their employer-issued email addresses for workplace organizing.

The Obama Board has also had an impact on the enforcement of other workplace rights. Most importantly, it decided in 2012 that individual arbitration clauses—contract terms that require employees to agree in advance not only that they will take any employment disputes to arbitration, but also that they will eschew class or collective actions—violate the NLRA. This ruling protects workers’ abilities to aggregate their low-dollar claims under laws like the Fair Labor Standards Act or Title VII of the Civil Rights Act, by preventing employers from contracting their way out of a key deterrent against the illegal treatment of workers—the threat of class litigation.

It would go too far to say that the NLRB under President Obama revolutionized labor law. More accurately, it persistently chipped away at rules that had failed to keep up with modern working conditions, or that were inconsistent with the NLRA’s purpose of “encouraging the practice and procedure of collective bargaining.” But a Trump presidency – especially when coupled with a Republican-controlled House and Senate, and a conservative Supreme Court – threatens new restrictions on unions and workers.

Looking Ahead: Threats to Organized Labor From All Directions

There are currently two empty seats on the NLRB, and Trump is expected to fill them with Republicans; his short-list was reported late last month. Once new Board members have been confirmed, the Board will be in a position to begin rolling back Obama Board decisions. Additionally, Congress can change the underlying law to make it more employer-friendly (with few prospects for a presidential veto), and federal courts may limit the permissible scope of union activity. Employers will surely push forward on each of these fronts.

As with any large agency, it will take the Trump NLRB some time to change course, but a U-turn could come relatively quickly in cases that are still pending on appeal. A likely candidate is the Board’s recent decision allowing graduate student workers to organize. There, although Columbia graduate students have already voted overwhelmingly to be represented by the United Auto Workers, the University has sought a re-do election; that process could extend the case long enough to give the Trump Board a chance to reverse itself. Other key pending cases involve questions such as whether McDonalds exercises enough control over its franchises’ employment policies to qualify as a joint employer of the franchises’ employees; and whether gig economy workers, including Lyft and Uber drivers, qualify as employees who are entitled to labor law protections. Previously, unions had reason to be cautiously optimistic in each of these cases; now, the reverse is true. Moreover, the Board’s current General Counsel’s term expires later this year; his replacement could prioritize the parts of the NLRA that apply against unions, rather than against employers.

While it is a safe bet that the Trump NLRB will be an unwelcoming environment for labor, the greatest threats to unions during the Trump administration may come from the Supreme Court. It is impossible to say with certainty how Trump’s Supreme Court nominee, Judge Neil Gorsuch, will vote in cases that come before the Court, but he could provide a fifth vote for the proposition that it is unconstitutional for public sector unions to charge represented workers an “agency fee” to help pay for the union’s work at bargaining table and in fighting grievances. Public sector unions narrowly avoided that outcome in last year’s closely watched case, Friedrichs v. California Teachers Association—which was litigated by then-colleagues of current acting Solicitor General Noel Francisco—when Justice Scalia died before he could cast his vote. Now, Friedrichs-style challenges are already pending in the lower courts, and could reach the Supreme Court by next Term.

Finally, while the NLRA is famously difficult to amend, single-party control in Washington could give Republicans an opening. If they take it, they could pass a federal “right to work” law, which would do in the private sector what a case like Friedrichs would do in the public sector: remove states’ option to choose whether to permit unions to negotiate agency fees. While President Trump has at times courted the support of labor unions, he has also indicated that he supports right to work laws.

How Might Organized Labor Respond?

Given the landscape at the federal level, many unions may decide to devote what resources they can to state- and municipal-level fights during the next four years. This strategy has promise, though with some limitations. First, minimum standards campaigns are expensive, and unions are already anticipating hits to their treasuries during the Trump presidency. Second, federal preemption means there are limits to what can be accomplished at the municipal or state level. For example, when Seattle created a framework to allow Lyft and Uber drivers to bargain collectively, the Chamber of Commerce—represented by Noel Francisco—filed suit, arguing that Seattle’s ordinance was preempted by federal labor and antitrust law. (The suit was dismissed as unripe; a new similar complaint was filed earlier this month, with Michael Carvin, who argued Friedrichs, representing the plaintiffs.) It is still unclear whether that argument will succeed, but its chances will increase with a conservative majority on the Supreme Court.

Assessments of the severity of the coming threat to the labor movement should not be downgraded because of Trump’s populist message about restoring American jobs. First, we have already witnessed countless examples of Trump’s vitriolic responses to civil society institutions that oppose him, as the vast majority of labor unions did during the presidential campaign. Second, Trump is already surrounding himself with enemies of labor unions, including Vice-President Mike Pence, Education Secretary Betsy DeVos, and failed Labor Secretary nominee Andy Puzder. Third, organized labor is a key constituent of the Democratic coalition, because unions can mobilize members to help get-out-the-vote for their candidates—but only if they have the resources they need to construct the necessary infrastructure. Thus, Republicans have a clear interest in making it more difficult for unions to raise funds to cover core bargaining expenses, and in imposing barriers to unions’ effectiveness on behalf of workers. Given these dynamics, it is virtually certain the American labor movement will face a set of damaging and mutually-reinforcing federal policies over the next four years—the only question that remains is how it will react.


Charlotte Garden is an associate professor at Seattle University School of Law. Follow her on Twitter at @CharlotteGarden

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