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Unions Face New NLRB & Court

Although the Obama administration supported the ambitions of labor unions, the Trump presidency has seen the rollback of many of those initiatives, and now things are about to get a whole lot worse for the unions.

On Sept. 25 the Senate confirmed Trump’s last nominee to the National Labor Relations Board, bringing the total of board members to five, consisting of three Republicans and two Democrats.

William J. Emanuel begins a term that will terminate at the end of August 2021. He joins fellow Republican Marvin Kaplan, named by Trump and confirmed earlier this year, whose term ends in August 2020.

The third Republican is the current Chairman Philip Miscimarra, who recently announced that he will step down from the NLRB when his term expires in December. Expect Trump to name Kaplan or Emanuel as chairman and nominate another Republican to the board, who is reportedly John Ring, a management-side labor attorney.

In mid-September, the President also nominated Peter Robb, another management-side labor attorney, to serve as the NLRB’s General Counsel, to replace Democrat Richard F. Griffin Jr., whose four-year term expires at the end of this month.

The NLRB general counsel post is of vital importance because he serves as gatekeeper, blocking or passing on decisions of controversy made by regional officials to the full board for precedent-setting resolution.

The Trump-appointed board is expected to overturn workplace-rule issues, including those regarding employee access to information, civility and professionalism, class actions and arbitrations, confidentiality during investigations, employee dress code and recording in the workplace.

“We believe the incoming board will tackle handbooks and work rules differently, instead
balancing the potential adverse effect of the rule on protected activity against an employer’s legitimate business justifications,” says attorney Kyllan B. Kershaw of the Seyfarth Shaw law firm.

Other major reversals are likely to occur in regard to joint-employer status, micro-unit organizing, quickie representation elections, the use of permanent strike replacements, and the expansion of a union’s right to company information during the collective bargaining process.

In addition, issues on the NLRB General Counsel’s agenda are likely to disappear, including allowing unions to engage in intermittent strike activity.


Unions also are unlikely to find much joy from the new U.S, Supreme Court session, with a full bench of nine justices fortified by the presence of Trump’s appointment, Neil Gorsuch.

Perhaps the most notable of these cases could seriously weaken the labor movement by taking away the ability of public unions to require civil servants who opt out of being union members pay fees to cover the costs of collective bargaining, managing the contract and grievance handling.

The High Court also is expected to confront the issue of state governments that are seeking to weaken already-enacted right-to-work laws in a number of ways, including grandfathering in union representation and the forcing employees to pay dues-equivalent fees to unions.

Attorney Harold Coxson of Ogletree Deakins points out that private sector union density has steadily declined to its current low of 6.4% in 2016.

However, he notes total union representation of 10.7% is propped up by steady public sector density – most recently 34.4% in 2016 – more than five times the private sector rate. If that drops, unions may redouble their efforts in the private sector.

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