Think It’s Tough for Labor Now? Just Wait Until Trump Takes Office in January

Moshe Z. Marvit November 17, 2016

Donald Trump may be able to not only roll back many of Barack Obama’s accomplishments, but also change the face of labor law for decades to come. (AFL-CIO/ Facebook)

In 63 days, orga­nized labor is going to find itself in a new polit­i­cal real­i­ty, which it seems total­ly unpre­pared for. Don­ald Trump will be pres­i­dent; the Repub­li­cans will con­trol the House and Sen­ate and one of Trump’s first tasks will be to nom­i­nate a new Supreme Court jus­tice. Though Trump was tight-lipped about spe­cif­ic pol­i­cy pro­pos­als, his cam­paign and the cur­rent con­sti­tu­tion of the Repub­li­can par­ty do not bode well for labor.

Trump’s actions will large­ly fall into one of four cat­e­gories: judi­cial, leg­isla­tive, exec­u­tive and at the lev­el of fed­er­al agen­cies. Each poten­tial move will take var­i­ous lev­els of coop­er­a­tion from oth­er branch­es of gov­ern­ment and vary­ing amounts of time to complete.

On Day 1 of his new admin­is­tra­tion, Pres­i­dent Trump can sim­ply rescind many of Barack Obama’s exec­u­tive orders that ben­e­fit­ed large groups of work­ers. Chief among these were EO 13673, which required prospec­tive fed­er­al con­trac­tors to dis­close vio­la­tions of state and fed­er­al labor laws, and helped pro­tect employ­ees of con­trac­tors from wage theft and manda­to­ry arbi­tra­tion of a vari­ety of employ­ment claims. Sim­i­lar­ly, EO 13494 made con­trac­tor expens­es asso­ci­at­ed with union bust­ing non-allow­able, there­by help­ing to ensure that work­ers can exer­cise their labor rights.

At the agency lev­el, Trump will have the oppor­tu­ni­ty to fill vacan­cies on the five-per­son Nation­al Labor Rela­tions Board (NLRB), effec­tive­ly turn­ing what has been one of the most pro-work­er boards in recent mem­o­ry into one that is more con­cerned with employ­ers’ inter­ests. The NLRB is one of the more politi­cized fed­er­al agen­cies, and it is not uncom­mon for a new NLRB to over­turn a pre­vi­ous board’s rul­ings. A con­ser­v­a­tive board would put into jeop­ardy recent gains, includ­ing the require­ment of joint employ­ers to bar­gain with work­ers, the rights of grad­u­ate stu­dents to form unions, the rights of adjuncts at reli­gious col­leges to form unions and the pro­tec­tions from class action waivers in employ­ment arbi­tra­tion agree­ments, which effec­tive­ly block access to jus­tice for too many.

Sim­i­lar­ly, Trump can imme­di­ate­ly dis­miss the entire Fed­er­al Ser­vice Impass­es Pan­el (FSIP) and appoint his own mem­bers. The FSIP is a lit­tle-known fed­er­al agency that func­tions like a mini-NLRB to resolve dis­putes between union­ized fed­er­al employ­ees and the government.

At the leg­isla­tive lev­el, var­i­ous anti-work­er bills sit ready for a GOP-led push. Per­haps chief among them is the Nation­al Right to Work Act, which would place every pri­vate sec­tor employ­ee (includ­ing air­line and rail­way employ­ees cur­rent­ly under the Rail­way Labor Act) under right-to-work. Right-to-work is the mis­lead­ing law that pro­hibits unions from requir­ing that work­ers rep­re­sent­ed by the union pay their fair share. Such a bill was intro­duced last year by Sen. Rand Paul, and it had 29 co-spon­sors, includ­ing Sen­ate Major­i­ty Leader Mitch McConnell. Trump announced on the cam­paign trail that his posi­tion on right-to-work is 100 per­cent,” so this will like­ly be an area where he has com­mon cause with the GOP-con­trolled Congress.

At the judi­cial lev­el, there is also a strong pos­si­bil­i­ty that we will see a sequel to the Friedrichs case at the Supreme Court. Friedrichs was wide­ly antic­i­pat­ed to bar fair share fees and place all pub­lic sec­tor employ­ees under right-to-work, but end­ed in a dead­lock after Jus­tice Antonin Scalia’s death. It is like­ly that any Supreme Court jus­tice that Trump choos­es will be as crit­i­cal of fair share fees as Jus­tices Samuel Ali­to and John Roberts, and would pro­vide a crit­i­cal fifth vote in chang­ing long-stand­ing prece­dent regard­ing the allowance of such fees. Groups like the Nation­al Right to Work Com­mit­tee and Cen­ter for Indi­vid­ual Rights often have cas­es in the pipeline that could be pushed to the Supreme Court when the oppor­tu­ni­ty arises.

Sim­i­lar­ly, at the judi­cial lev­el, Trump will like­ly have his Depart­ment of Labor drop appeals to court deci­sions that enjoined or over­turned pro-work­er rules, such as the rule requir­ing union-busters to dis­close when they are involved in an orga­niz­ing cam­paign. Drop­ping the appeals would be an easy route to kill the rules, rather than going through a more time con­sum­ing rule­mak­ing process to rescind them.

All indi­ca­tions are that labor has been caught unpre­pared for a Pres­i­dent Trump and a GOP-con­trolled Con­gress and Supreme Court. With such broad con­trol over every branch of gov­ern­ment, Trump may be able to not only roll back many of Obama’s accom­plish­ments, but also change the face of labor law for decades to come.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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