Labor movement braces for three-front battle with Trump, Congress and courts

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With Capitol Hill controlled by Republicans and the president-elect likely to nominate a conservative supreme court justice, unions ‘hunker down’

After spending tens of millions of dollars in hopes of electing Hillary Clinton, the labor movement fears that President-elect Donald Trump, the Republican-controlled Congress and the supreme court will be hostile to labor and take numerous steps to hobble unions.

These steps can range from appointing a National Labor Relations Board (NLRB) that does business’s bidding to erasing an array of Obama administration regulations, including one making overtime pay available to millions more workers.

“These are going to be some challenging times,” said Lee Saunders, president of the American Federation of State, County and Municipal Employees, which has 1.3 million members. “We’re just going to have to hunker down.”

Saunders, who is chairman of the AFL-CIO’s political committee, fears that Congress might enact a so-called national right-to-work law, which would prohibit any requirement that employees at unionized private-sector workplaces pay union fees. Saunders also worries that the supreme court – after Trump nominates a presumably conservative justice to fill the vacancy left by Antonin Scalia’s death – will rule that government employees can’t be required to pay union fees.

Labor leaders fear that such moves would encourage many workers not to pay anything to unions representing them, depleting union treasuries and making unions weaker in bargaining, lobbying and politics. Many Republican lawmakers are eager to weaken unions because they are major supporters and funders of the Democratic party.

After Scalia died, the supreme court deadlocked, 4-4, in a case, Friedrichs v California, in which a public school teacher asserted that a requirement that she pay fees to the union representing her violated her first amendment rights. “There are at least 27 cases in the lower courts that would do the same thing Friedrichs would have, and you have to expect that one of those cases will bubble up to the supreme court,” Saunders said. “That will be a major challenge for us.”

Missouri’s new Republican governor, Eric Greiten, with the help of his state’s Republican-controlled legislature, has signaled he will push for a “right-to-work” law, following in the footsteps of Wisconsin and Michigan. And with Republicans winning a supermajority in both houses of the Pennsylvania legislature, they might be able to enact such a law over a likely veto by the state’s Democratic governor.

Marshall Babson, an employment lawyer who served on the NLRB under president Ronald Reagan, said he wasn’t sure whether Trump would push to hobble labor unions. “How much this guy cares about labor issues and whether he’s going to do anything about them, I have no idea,” Babson said.

But he said Congressional Republicans were eager to enact anti-union measures and would press Trump to go along. Babson said Trump was likely to appoint business-friendly NLRB members who would seek to reverse pro-union decisions made by the Democratic-controlled board under Obama. He predicted that a Trump board would undo a rule that has sped up union representation elections, giving companies less time to fight against unionization efforts.

Babson said a Trump board, backed by the nation’s business community, would scrap efforts by the Obama NLRB to make it easier to declare employers like McDonald’s joint employers with their individual franchisees. Joint employer status would make McDonald’s, Burger King and other giant franchising companies co-responsible for legal violations by franchisees and more vulnerable to unionization drives.

A Trump board, Babson said, would take aim an another Obama board initiative – one that bars employers from making workers sign waivers that prohibit them from bringing class actions on employment-related issues, like wage violations or sex discrimination. And there’s a good chance the Trump NLRB would reverse the Obama board’s decision to give graduate students at private universities the right to unionize.

If the NLRB doesn’t take such actions, the Republican-controlled Congress might seek to. “The other hot issue on the Hill is workers using their employer’s computer system for unionizing,” Babson said. The Obama board has ruled that employees have the right to use their company’s email system for union-related activity if they’re also permitted to use it for other personal activity.

Babson said he doubted Congress would enact a national “right to work” law because there were enough Democratic senators to filibuster to stop it.

Joseph McCartin, a professor of labor history at Georgetown University, added that Republicans might see little reason to push for a national “right-to-work” law as they saw additional states moving to enact such laws.

Pointing to a future Friedrichs-like case, McCartin said: “I think the public-sector unions will face the biggest problems.” He added that federal employees’ unions would be on the defensive, except for the union representing Immigration and Customs Enforcement agents, which endorsed Trump.

With Trump voicing hostility toward regulations, many labor experts say he may seek to undo numerous Obama-era regulations, among them those enabling millions more workers to qualify for overtime pay and requiring federal contractors to report labor and employment-law violations.

With the percentage of workers in unions dropping to 11.1%, McCartin predicted a further decline for labor under Trump. “The status quo in labor policy is toxic for the union movement unless the status quo is changed in a positive way,” he said. Nonunion worker-advocacy groups, such as the Restaurant Opportunities Center and the Coalition of Immokalee Workers in Florida, have become increasingly effective in pressuring employers, and McCartin said a Trump NLRB might seek to change definitions so that these groups would be considered labor unions, which would subject them to stricter rules on picketing and other activities.

One of the few bright spots for labor last Tuesday was that voters in Arizona, Colorado and Maine voted to raise their states’ minimum wage to $12 an hour by 2020. In Washington state, voters approved an increase to $13.50 by 2020.

As Congressional Republicans signal continued opposition to raising the $7.25 federal minimum wage, more such state actions are expected. “When we take these issues closer to the ground, we’re able to move – there is popular support,” McCartin said. “At the state and city level, we can do things. The cities are the laboratories for rebuilding the labor movement.”