Now that Donald Trump has been sworn in as the 45th president of the United States and the Republicans control both houses of Congress, there has been nonstop speculation about which campaign promises Trump will be able to deliver as president. However, trying to predict what Trump will do based on his erratic and cryptic Twitter postings is next to impossible. Here we briefly summarize how the Trump agenda will impact labor unions and the working families they represent.
• Public Sector. Because of Justice Scalia’s death, the Supreme Court deadlocked over whether to declare public-sector “agency shop” (the closest form of “Union shop” allowed by law) is invalid under the First Amendment. We can anticipate this question hitting the Supreme Court docket no later than the fall term of 2017, at which point we assume Trump will have appointed a 9th Justice who can resolve the deadlock in favor of “Right to Work.” A decision should issue no later than July 2018. A ruling from the Court banning the agency shop would mean members in public sector bargaining units could decide to stop paying union dues without suffering any consequences.
• Private Sector. The arguments used to outlaw public sector agency shop can – with some adjustments – be applied to the private sector, so a private sector case intended to do exactly that is likely to find its way to the Supreme Court. There’s also a legislative angle: the Republican Congress may well take up legislation to amend the NLRA to prohibit unions from collecting dues from non-members. In other words, national right-to-work language. Trump may not push such legislation, but if it arrives on his desk, he certainly is unlikely to veto it.
• Appointments. The NLRB currently has three members (two Democrats and one Republican) and two vacancies. Trump can be expected to appoint two Republicans to these vacancies in fairly short order, giving the Republicans a majority no later than mid-2017. This majority will continue for the duration of the Trump presidency. The term of the current NLRB General Counsel, the person who decides what cases to prosecute and which to take to the Board, expires in November 2017, at which time he will be succeeded by a Trump appointee.
• Possible Reversals. The Obama Board has been relatively aggressive in pushing enforcement of the NLRA. With the exception of the new election rules, the changes in law implemented by the Obama Board are easily reversed by a Trump Board. Cases likely to be on the Trump chopping block include:
• Bargaining Unit Composition. Past Republican Boards have issued rulings forcing unions to organize in broader and broader units. The Obama Board reversed that trend and returned to the traditional, flexible test for appropriate unit composition.
• Dues Checkoff. The Obama Board overturned a 50-year-old decision to rule that dues checkoff survives expiration of the CBA and remains enforceable pending agreement on a new CBA.
• Class Action Waivers. The Obama Board resisted the disapproval of several appellate courts and consistently ruled that class action waivers interfere with the rights of employees – union and non-union alike – under the NLRA.
• Email Communication. The Obama Board overturned a Bush II decision which held that employers could prohibit employees from using its email system for statutorily protected communication, as long as it did not apply its ban discriminatorily. The Obama Board’s decision gave employees the right to use email provided by their employer to discuss union issues just as employees generally have the right to discuss unionization at the “water cooler” or other gathering places at work on nonwork time.
• Temp Workers. The Obama Board issued an important decision granting unions the ability to demand bargaining with the contracting employer over the wages and terms of employment of temporary workers.
• Independent Contractors. Whether a worker is an employee, with NLRA protection, or an independent contractor always entails application of some judgment in weighing the different factors that determine a worker’s status. The Obama Board has issued several important decisions finding workers classified by their employer as independent contractors to be employees.
Challenging times ahead…
Beeson, Tayer & Bodine — Oakland: 510-625- 9700. Sacramento: 916-325-2100.