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The election of Donald Trump as president turned the landscape of labor relations law upside down. Prior to the election, those expecting Hillary Clinton would win projected the expansion of the Obama administration's rules and executive orders. But the advent of a Trump administration reverses those assumptions.
Trump is likely to nominate more-conservative members to the National Labor Relations Board (NLRB), which may lead to more business-friendly decisions. That won't happen though until late in 2017 at the earliest.
Trump is also widely expected to undo President Barack Obama's executive orders, as he promised on the campaign trail.
Pleasing a Populist Constituency
Although Trump did not provide many specifics about his ideas for labor policy during his campaign, he did make clear that he opposes
excessive regulations, especially if they are "job killers."
For more information about Donald Trump's workplace policies and how they affect HR professionals, check out the SHRM resources provided below:
Phillip Wilson, president and general counsel for the Labor Relations Institute (a consulting firm based in Broken Arrow, Okla.), noted that a big part of the Trump campaign was a pro-worker stance. "We can't assume he is pro-business, although he likely will ease business regulations," Wilson said. "The Trump administration won't necessarily be in lock step with the establishment GOP on labor issues."
This offers an opportunity for Trump to play both sides of the fence. "Trump's coalition gives him some flexibility to try to 'thread the needle' to keep his campaign promises, while still giving something to his populist constituency," Wilson said.
Kurt Larkin, an attorney at Hunton & Williams in Richmond, Va., also suggested that the president-elect's style of governing might be different. "We may wind up seeing his presidency have more of an indirect impact on the labor issues employers will face over the next four years," Larkin stated. "For example, if he follows through on his pledge to invest in infrastructure improvements, he may incentivize businesses to expand their government contracting portfolio."
Larkin said such a scenario could "create more labor compliance challenges—and union-organizing opportunities—for companies getting into the business of being a government contractor for the first time."
The makeup of the NLRB will change under a Trump administration. There currently are two vacant board positions, and the terms of Republican board chairman Philip Miscimarra and General Counsel Richard Griffin Jr. expire near the end of 2017. This will give Trump much leeway in shaping the board. His board appointments, like those of other presidents, will reflect his labor priorities.
But for now, Obama's board consisting of two Democratic members and one Republican is in control of labor relations law and will remain so well into 2017. Board appointments must be confirmed by the Senate, and Trump's priority will be filling his cabinet and other top agency positions first, Wilson said.
"There are a lot of things that Trump has prioritized," he noted, "and the NLRB isn't one of them." Wilson speculated that it may not be until spring or summer of 2017 before Trump makes the NLRB appointments.
The board could lose its minimum number of members to act (a "quorum") in 2017 if Trump fails to appoint new board members or a replacement for Miscimarra, or if his appointments are not approved by the Senate. In NLRB v. Noel Canning (134 S.Ct. 2550 (2014)), the U.S. Supreme Court held that the board must have a three-member quorum to decide and take final action in unfair labor practice proceedings and union election cases. Without replacement board members, the board would be unable to act, but the acting or new general counsel and regional directors would still be able to pursue actions.
Once appointments have been made and confirmed, there is a consensus that the new Republican-led board will focus on overturning precedential decisions and rules that have been unfavorable to business.
When the new NLRB changes from a Democratic to Republican majority, stated Kate Bischoff, SHRM-SCP, an attorney with tHRive Law & Consulting in Minneapolis, the new board likely will provide relief from the "quickie" election rule. The quickie or "ambush" union-organizing election rule sped up the time frame in which union representation elections are conducted, giving companies less time to fight against such efforts.
Several attorneys also believe that the Trump board will abandon efforts by the Obama NLRB to make it easier to declare corporate franchising employers, like McDonald's,
joint employers with their individual franchisees. As joint employers, McDonald's and other large franchising corporations are co-liable for legal violations of their franchisees and more vulnerable to unionization drives.
Trump can change the labor law landscape either by rolling back what Obama did or moving his own policies forward. Executive orders (EOs) are easy to get rid of. Trump only needs to sign a new order cancelling the orders he wants to eliminate.
The most likely targets, according to Wilson, are the EOs on:
[SHRM members-only toolkit:
Managing Federal Contractor Affirmative Action Programs]
Wilson also suggested that
the federal contractor paid leave order (EO 13706) might be on the chopping block. "Or maybe not," Wilson added. He pointed out that during the campaign, Trump proposed a paid maternity leave plan.
Frank Alvarez, an attorney with Jackson Lewis in White Plains, N.Y., said the executive order might be rolled back, "but in its place, expect landmark federal paid-sick-leave legislation. This may be welcome given the conflicting state and local laws," Alvarez continued. "Ideally, President Trump will push states to align their laws with a federal model." But enactment of a paid leave proposal is
far from certain.
To move his own agenda forward, Trump will need to propose legislation in addition to rulemaking. Enacting legislation requires passage in both the House and the Senate with 60 votes to end debate on a bill, in addition to the president's signature. "The key to getting things passed is to make surgical strikes on narrow targets with constituencies from both sides," Wilson said.
"This may be the best chance to pass a national right-to-work law," Wilson stated. "There already is a lot happening at the state level." A right-to-work law would prohibit requiring nonmember employees at unionized workplaces to pay union dues or fees. Alabama voters just added a right-to-work clause to their state constitution. Changes in governors and state legislatures in Kentucky, Missouri and New Hampshire, where the winning candidates campaigned in support of such laws, make it more likely that they will be enacted next year.
Lee Saunders, president of the American Federation of State, County and Municipal Employees, and chairman of the AFL-CIO's political committee, fears that a national right-to-work law may pass Congress. "These are going to be some challenging times," Saunders said.
Robert Teachout, SHRM-SCP, is a writer in Washington, D.C., who covers employment law and HR issues.
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