TRUMP ADMINISTRATION AND LABOR/EMPLOYEES
Published: Jul 31 2018 1:09PM
TRUMP ADMINISTRATION AND LABOR/EMPLOYEES
I. NLRB
1. Trump appointed Board members- one is from a law firm that advertises itself as specializing in “union avoidance”; one was House Republican staffer who never practiced labor law; and one announced his purpose as shifting the balance at NLRB back toward employers, and stated that whether jobs will be created would be a determining factor in how he rules, even though NLRB's mandate is to enforce rights and obligations without any qualification.
2. New NLRB reversed Obama Board decision on when a franchisor is a joint employer with its franchisee, allowing franchisors (like McDonalds) to be immune from liability of the franchisee’s unfair labor practices, even though franchisors extensively control franchisees.
3. The new NLRB reversed prior Board decisions that would expedite elections; employers use delay to undermine union support with propaganda and threats.
4. It also reversed a Bush Board decision that an employer interferes with protected worker activity when it bars use of cameras on work premises to document unlawful acts and unsafe conditions.
II. EXECUTIVE ORDERS
1. Trump vacated Obama administration rules requiring government contractors to disclose labor law and OSHA violations, to support law abiding contractors and not reward law breakers.
2. Agencies were ordered to drop two existing regulations for every new one they issue. Many regulations, including FRA regulations, provide for worker safety and other worker rights. This will make it harder for agencies to issue new regulations and it may mean existing ones are eliminated.
3. Federal agencies were ordered to push for givebacks in collective bargaining with Federal sector unions, to reduce worker rights in discipline and layoffs, to eliminate use of official time for union work (Federal sector is open shop), and to exclude discharge cases from grievance and arbitration procedures.
III. FRA/DOT
1. Administration requirement for eliminating 2 rules for every new one will mean either no new worker safety rules, or elimination of existing rules.
2. FRA sided with KCS in dispute w/ BLET over KCS allowing Mexican train crews to cross the border to go into Laredo yard, eliminating use of American train crews who used to take over at the border and run trains into Laredo.
3. DOT reneged on commitment for funding for Gateway project for repair and replacement of tunnels and related bridges between NJ and NY to fix and replace long outdated infrastructure and infrastructure damaged by Hurricane Sandy --essential not only for Amtrak but all of Northeast and Mid-Atlantic--- also a source of much work for maintenance of way and signal workers.
4. Administration $1.5 trillion Federal infrastructure investment plan turned out to be about $200 billion in federal spending to try to unrealistically leverage $1.3 trillion in non-federal spending. And it appears that the $200 billion may be from moving funds from existing programs, and not new money. This may be why the proposal has disappeared after multiple “infrastructure weeks”.
5. The Administration’s FY’19 budget proposed to cut Amtrak spending by half. That could mean 10,000 rail worker jobs (and 10,000 employees paying into Railroad Retirement). The budget proposal sought to reduce FRA safety and capital grants for commuter railroads.
6. Related—Senate majority bill would constrain FRA regulation of railroads and promote voluntary compliance, rather than enforcement. It would require high degree of scientific precision for evidence in support of a rule, allow carriers to substitute outcome based voluntary programs for strict rules, and would allow private parties to petition for review of rules (which would put FRA in perpetual review, inhibiting new rules and probably shifting resources from enforcement to review of rules).
IV. NMB
Trump majority NMB opened field investigation on whether UNITE HERE obtained authorization cards by intimidation and misrepresentation when the union had cards from 76% of United Airlines food service workers– a field investigation was opened based on absurd allegations that workers were confused by the name of the Union –UNITE HERE and name of the company United; that workers were not fluent in English– but the union used multi-lingual materials, and United communicates with employees in English; and that signatures of 76% of employees must have involved improper union influence because the percentage is so high (instead of result of mistreatment of workers).
The Board normally deals with interference claims after an election by re-run, if it finds interference; the Board rarely does field investigations on interference. Delay of election is tactic of employers to use the time to erode union support by threats, propaganda, and intimidation. RLA has fewer protections for organizing than NLRA, but it does mandate speedy elections. NMB’s recent action allows for NLRA style delay tactics.
V. DOL
1. Reversed government position in Janus case; DOL supported the effort to overturn precedent on union security and represented employee obligation to cover the costs of bargaining and representation for public employees.
2. Reversed position on already briefed issue at Supreme Court EPIC case--on whether employees can be bound by individual employment contracts mandating private, company controlled, arbitration where class action or even multi-employee group arbitration is prohibited and decisions are non-disclosable
3. Overturned fiduciary rule that required investment advisors for retirement funds to act in the best interest of the employee/account holder– prevents self-dealing.
4. Proposal to merge DOL into Department of Education which would put wage and safety enforcement under DOE; and the plan would explicitly put the DOL's emphasis on training and not on enforcement.
5. Repealed "persuader rule" adopted by Obama DOL which would require companies to disclose use of “union avoidance”/union buster consultants.
VI. SUPREME COURT
1. Janus v. AFSCME Council 31–the ruled 5-4 that the 1st Amendment prohibits compelled speech, and that public sector union bargaining involves public policy, so union advocacy in collective bargaining is speech–not just bargaining over wages and benefits. The Court overruled 40 year old precedent balancing employee free speech rights and the problem of free riders getting benefit of collective bargaining and union contract enforcement without paying for it, by holding that employees represented by a union could be required to pay a fair share of the cost of collective bargaining and contract enforcement, but not for political advocacy. But after Janus, unions would still have a duty to represent employees who don’t contribute for the cost of collective bargaining and contract enforcement.
The Trump Administration changed the position of the government from pro-union to anti-union, and the fifth vote for the decision was Justice Gorsuch
2. EPIC Systems v. Lewis– In a 5-4 decision written by Justice Gorsuch, the Court held that individual employees could be bound to contracts with employers prohibiting class actions and even joint arbitration and requiring all claims to go to company run and paid arbitration in single arbitration where awards are not only non-precedential, they’re also confidential so may not be disclosed to co-workers.
Premise was that employee and employer are equal contracting parties so each is bound to the contract–even though employees have no leverage in “negotiating” with a large employer on an employment contract. The decision uses the cover of freedom of contract to limit employee rights through contract law. The Court rejected Obama NLRB position that such restrictions run afoul of NLRA right of employees to act together for their mutual aid and support regarding employment – despite plain language of statute that protects that right.
3. Nomination of Judge Kavanaugh --his real impact has been and will be on the power of administrative agencies to enforce laws and issue and enforce regulations that protect Americans --like worker protections and workplace safety. While he has a reputation as a strict constructionist and a language literalist and not one to readily defer to agencies, in a major rail union case he ignored plain statutory language and deferred to an agency interpretation contrary to that language
Many considerations go into how people vote, some union members may have other priorities that they find most compelling and obviously everyone in voting has to weigh all their concerns, this recitation is not attempting to minimize anyone’s strongly held beliefs.
But workers should not assume that the ultimate choices they make in voting won’t affect the union and its ability to effectively represent them. Voting for Trump and his supporters will make a negative difference in the ability of unions to advocate for workers.
So people may certainly decide that after balancing all factors they will vote for Trump and his supporters, but they should not delude themselves that it won’t impact their union and their lives at work.